Moss, William H. v. Martin, Timothy

In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 05-3689

WILLIAM H. MOSS,

Plaintiff-Appellant,

v.

TIMOTHY MARTIN, ROBERT MILLETTE,

and BRIAN PIERSMA,

Defendants-Appellees.

____________

Appeal from the United States District Court

for the Central District of Illinois.

No. 04 C 3217—Jeanne E. Scott, Judge.

____________

ARGUED NOVEMBER 9, 2006—DECIDED JANUARY 2, 2007

____________

Before BAUER, POSNER, and FLAUM, Circuit Judges.

BAUER, Circuit Judge. William Moss brought this civil

rights action against Illinois Department of Transporta-

tion (“IDOT”) employees Timothy Martin, Robert Millette,

and Brian Piersma, seeking monetary and injunctive re-

lief under 42 U.S.C. §§ 1983 and 1988. Moss alleges that

he was fired from his position as the IDOT’s Chief of the

Highway Sign Shop because of his political affiliation, in

violation of the First Amendment, and without due

process, in violation of the Fourteenth Amendment.

Pursuant to Fed. R. Civ. P. 12(c), the defendants moved

for judgment on the pleadings, which the district court

granted. For the reasons stated herein, we affirm in part

and reverse and remand in part.

2 No. 05-3689

I. Background

The IDOT is the department in Illinois’ state govern-

ment that is responsible for developing a statewide

master plan for transportation, spending state funds for

roads and highways, developing and coordinating effective

programs and activities to facilitate the movement of

motor vehicle traffic, and protecting and conserving life

and property on Illinois’ streets and highways. See 20 ILL.

COMP. STAT. 2705/2705-200, 255, 210 (2004). The IDOT

is headed by the Secretary of Transportation, who oversees

the IDOT’s five Divisions and five Offices. 2 ILL. ADMIN.

CODE 1225.210(b). The Division of Highways has ten

separate bureaus, including the Bureau of Operations. The

Bureau of Operations consists of the Central Bureaus of

Construction, Maintenance, Materials and Physical

Research, and Traffic. 2 ILL. ADMIN. CODE 1225.280(b). The

Highway Sign Shop falls within the Bureau of Operations.

According to the IDOT position description, the Chief

of the Highway Sign Shop “is accountable for administer-

ing the Highway Sign Shop Section of the Bureau of

Operations.” The Chief “formulates and implements

policies, procedures, programs, and operational concepts

for maintenance and rehabilitation of the department’s

extensive sign and raised pavement marker systems

throughout the state.” In particular, the Chief “directs

the manufacture and distribution of all standard high-

way signs” and “directs the fabrication and installation of

overlay panels for rehabilitation of the statewide freeway

sign network.” The Chief also “maintains the depart-

ment’s comprehensive raised pavement marker system

in all highway districts and supervises a complete inven-

tory, accounting, and budgetary system to administer a

specific budget allocation for support of section activities.”

The Chief supervises approximately five employees

directly and twenty employees indirectly. The Chief

No. 05-3689 3

reports directly to the Engineer of Operations and main-

tains contact with the District Engineers, Traffic Engi-

neers, and Traffic Operations personnel in all district

offices and other central bureaus. The Chief is in contact

with the Department of Corrections, representatives of

other states, governmental agencies, research organiza-

tions, private sign fabricators, suppliers of raw materials

and installation equipment, and contractors.

The position description specifies that the Chief has

both technical and managerial responsibilities: the Chief

“is personally responsible for providing standard signs

and sign making materials, directing the fabrication and

field activities required to meet the department’s state-

wide objectives for freeway sign and raised pavement

marker rehabilitation, and administering the section’s

budgetary and manpower resources.” The Chief also

“develops programs, policies and procedures to address

sign and raised pavement marker maintenance needs” and

“administers the Sign Shop budget and prepares annual

budget and long-range program requests . . . .”

While the value of the sign system is approximately

$104 million and the value of the raised pavement marker

system is approximately $9 million, the annual operat-

ing expenses of the Highway Sign Shop are approximately

$3.7 million. This figure includes the annual expenses

associated with the fabrication of between 60,000 and

70,000 standard signs, the refurbishment of 100,000

square feet of sign panels, and the maintenance of

25,000 raised pavement markers.1

1

The district court misinterpreted the overall values associated

with the sign system and pavement marker system in the

position description as an annual operating budget for the

Highway Sign Shop of more than $100 million.

4 No. 05-3689

On March 16, 2001, Moss became a certified employee

of the IDOT. His employment as Chief of the Highway Sign

Shop was terminated on April 26, 2004. Moss filed suit

against the IDOT defendants on September 24, 2004,

alleging that he was terminated because of his political

affiliation even though his political affiliation was irrele-

vant to his job duties. He claimed that his termination

violated his First Amendment right to political affilia-

tion and, because it was without any pre-termination

hearing or proceeding, his Fourteenth Amendment right

to due process.

The IDOT defendants moved for judgment on the

pleadings, attaching the position description for the

Chief of the Highway Sign Shop to their motion. The dis-

trict court granted the defendants’ motion, finding that

the functions of Moss’ position rendered his political

affiliation a proper employment consideration. The district

court also concluded that Moss had failed to state a due

process claim because his complaint failed to allege any

basis that would support a finding that he had a property

interest in his continued employment with the IDOT.

The district court granted Moss leave to file an amended

due process claim.

In his amended complaint, Moss asserted that the

IDOT’s Personnel Policy Manual (the “Manual”) gave rise

to an enforceable property right in his continued employ-

ment with the IDOT because the Manual requires that

terminations only be for cause. The defendants at-

tached the Manual to their answer to the amended com-

plaint and filed another motion for judgment on the

pleadings, which the district court granted. The district

court found that the disclaimer language contained in the

foreword section of the Manual negated any contention

that the Manual created a contract of employment. And

even if the Manual created a contract, the district court

concluded that the Manual contained language that

No. 05-3689 5

allowed the termination of an employee either with or

without cause. This timely appeal followed.

II. Analysis

A. Political Affiliation as a Valid Qualification for

Employment

Moss first argues that the district court erred in granting

the IDOT defendants’ motion for judgment on the plead-

ings because Moss’s position as Chief of the Highway Sign

Shop is not the type of position for which a politically-

motivated personnel action is constitutionally permitted.

Under Rule 12(c), a party can move for judgment on the

pleadings after the filing of the complaint and answer.

Brunt v. Serv. Employees Int’l Union, 284 F.3d 715, 718

(7th Cir. 2002) (citing Fed. R. Civ. P. 12(c)). Only when it

appears beyond a doubt that the plaintiff cannot prove any

facts to support a claim for relief and the moving party

demonstrates that there are no material issues of fact to be

resolved will a court grant a Rule 12(c) motion. Id. at 718-

19 (citing N. Indiana Gun & Outdoor Shows, Inc. v. City of

South Bend, 163 F.3d 449, 452 (7th Cir. 1998)). We review

a district court’s ruling on a Rule 12(c) motion de novo. Id.

at 719.

If the nature of a public official’s job makes political

loyalty a valid qualification for the effective performance

of his position, that official may be terminated on the

basis of his political affiliation. Riley v. Blagojevich, 425

F.3d 357, 359 (7th Cir. 2005) (citing Elrod v. Burns, 427

U.S. 367-68, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976); Branti

v. Finkel, 445 U.S. 507, 518, 100 S.Ct. 1287, 63 L.Ed.2d

574 (1980)). To determine whether political loyalty is a

valid qualification, we consider whether the employee’s

position entailed “the making of policy and thus the

exercise of political judgment.” Allen v. Martin, 460 F.3d

6 No. 05-3689

939, 944 (7th Cir. 2006) (quoting Kiddy-Brown v.

Blagojevich, 408 F.3d 346, 355 (7th Cir. 2005)). We also

consider the degree of discretion and responsibility exer-

cised in the position by examining the official job descrip-

tion for the position. Id. at 944-945; Selch v. Letts, 5 F.3d

1040, 1044-45 (7th Cir. 1993). “We only look past the

official job description where the plaintiff demonstrates

systematic unreliability.” Allen, 460 F.3d at 944. To show

such systematic unreliability, a plaintiff “must provide

specific facts demonstrating that the description was

unreliable and unauthoritative.” Id.

On prior occasions, we have held that political affilia-

tion is an appropriate requirement for various positions

within state highway departments. See Selch, 5 F.3d at

1047 (political affiliation appropriate requirement for

position of subdistrict superintendent of Indiana Depart-

ment of Highways); Allen, 460 F.3d at 945 (political

affiliation appropriate requirement for IDOT’s bureau chief

of accounting and auditing). Viewing the allegations in the

light most favorable to Moss, however, we cannot conclude

at this early stage in the litigation that political loyalty is

a valid qualification for the Chief of the Highway Sign

Shop position.

“Almost all jobs in government above the lowest level

require the holder of the job to exercise at least a modicum

of discretion . . . .” Riley, 425 F.3d at 359. The Chief of the

Highway Sign Shop is no different. The Chief “exercises

substantial independent judgment in making decisions

concerning the development and implementation of

innovative rehabilitation procedures”; “is afforded broad

latitude in accomplishing his/her duties”; and “formulates

and implements policies, procedures, programs, and

operational concepts . . . .” The use of buzz words such as

“formulates policies,” “broad latitude” and “substantial

independent judgment” in a position description does not

transform professional or technical judgment into political

No. 05-3689 7

judgment, however. In his complaint, Moss alleged that

there is nothing in the job duties of the Chief of the

Highway Sign Shop that made or makes political con-

siderations a requisite for that position. The position

description alone does not refute this allegation conclu-

sively, as it raises and fails to answer numerous ques-

tions as to the judgment and discretion exercised by the

Chief of the Highway Sign Shop.

In particular, while the Highway Sign Shop is within

the Bureau of Operations, we do not know where the

Chief of the Highway Sign Shop position falls within

IDOT’s overall hierarchy. We do not know what policies

the Chief implements: whether such policies merely

ensure that signs are properly repaired or manufactured

or whether they affect the IDOT’s broader policies and

delivery of services. We do not know Moss’s salary. We do

not know what contact, if any, the Chief of the Highway

Sign Shop has with public officials or citizens regarding

signs. Cf. Selch, 5 F.3d at 1047 (subdistrict superinten-

dent received between fifteen to twenty telephone calls

a day from public officials and citizens); Allen, 460 F.3d at

945 (major challenge of bureau chief ’s position is to

respond to legislator questions on fund expenditures in

their districts).

The position description states that the Chief makes

budget requests and administers resources and man-

power to operate the sign shop, but it does not mention

whether the Chief has the power to enter into contracts.

During oral argument, Moss represented that the Chief

does not decide what signs are erected or where or when

signs are installed. Cf. Selch, 5 F.3d at 1046 (subdistrict

superintendent decided where and when road mainte-

nance work was to be completed). He does not oversee

the crews that place the signs. In the absence of addi-

tional evidence as to the functions of the Chief and the

policies developed and enforced by the Chief, the extent of

8 No. 05-3689

any political value associated with these functions and

policies is also unclear. Cf. Selch, 5 F.3d at 1046 (stating

that “the successful implementation of policy in the area

of highway maintenance would likely have substantial

effect on the public’s perception of the Democratic admin-

istration”); Allen, 460 F.3d at 945 (“[T]he effective and

reliable execution of the Bureau’s audit function is of

great political value.”). While a better-developed record

may demonstrate that political affiliation is a valid

requirement for the Chief of the Highway Sign Shop, we

simply do not have enough evidence to reach that con-

clusion now.

B. Due Process

Moss argues next that the district court erred in con-

cluding that he had no protected property interest in his

continued employment with the IDOT and by granting

defendants’ motion for judgment on the pleadings on his

due process claim. Moss argues that the Manual specifi-

cally prohibited the abridgement of his constitutional

right to choose his political party and that the language

in the Manual prohibiting these actions was mandatory.

To establish a due process claim, Moss must demonstrate

(1) that he had a constitutionally protected property

interest, (2) that he suffered a loss of that interest amount-

ing to a deprivation, and (3) that the deprivation occurred

without due process of law. Kiddy-Brown, 408 F.3d at 360

(citing Polenz v. Parrott, 883 F.2d 551, 555 (7th Cir. 1989)).

Because Moss was employed in Illinois, we look to Illinois

law to determine whether he had a property interest in

his employment with the IDOT. Johnson v. City of Fort

Wayne, Ind., 91 F.3d 922, 943 (7th Cir. 1996).

Under Illinois law, a person has a property interest

in his job only where he has a legitimate expectation of

No. 05-3689 9

continued employment based on a legitimate claim of

entitlement. Krecek v. Bd. of Police Comm’rs of La Grange

Park, 646 N.E.2d 1314, 1318, 271 Ill.App.3d 418 (Ill. App.

Ct. 1995) (citing Faustrum v. Bd. of Fire and Police

Comm’rs of the Village of Wauconda, 608 N.E.2d 640, 641,

240 Ill. App. 3d 947 (Ill. App. Ct. 1993)). “To show a

legitimate expectation of continued employment, a plain-

tiff must show a specific ordinance, state law, contract or

understanding limiting the ability of the state or state

entity to discharge him.” Id. at 1318-19. Moss’s due pro-

cess claim fails because the Manual, on which he bases

his due process claim, does not give rise to a legitimate

expectation of continued employment.

Although Illinois law presumes that an employee hired

for an indefinite period may be discharged at will for

any reason, it also recognizes that employment hand-

books have the potential to form contracts between

employers and workers. See Duldulao v. Saint Mary of

Nazareth Hospital Center, 505 N.E.2d 314, 317-18, 115

Ill.2d 482 (Ill. 1987). A handbook that contains a clear

promise of continued employment gives rise to legal

entitlements. Id. at 318. At the same time, disclaiming

language in a handbook may preclude the formation of an

employment contract. See Davis v. Times Mirror Maga-

zines, Inc., 697 N.E.2d 380, 388, 297 Ill.App.3d 488 (Ill.

App. Ct. 1998).

In the first paragraph of its foreword, the Manual states,

This manual is provided to better acquaint you with

the personnel policies of the Illinois Department of

Transportation and does not constitute a contract of

employment in whole or in part. The Department

reserves the right to add, amend or delete any benefit

or policy stated herein at any time, except as other-

wise committed to by collective bargaining agree-

10 No. 05-3689

ments and the Department of Central Management

Services’ Personnel Rules.

(emphasis added). Under Illinois law, this unambiguous

disclaimer is sufficient to show that the Manual does not

create a legal right. See Davis, 697 N.E.2d at 388;

Habighurst v. Edlong Corp., 568 N.E.2d 226, 227, 209

Ill.App.3d 426 (Ill. App. Ct. 1991); Anders v. Mobil Chemi-

cal Co., 559 N.E.2d 1119, 1122, 201 Ill.App.3d 1088 (Ill.

App. Ct. 1990); see also Garcia v. Kankakee County

Housing Authority, 279 F.3d 532, 536 (7th Cir. 2002).

Moreover, the disclaimer was not buried or otherwise

hidden: it was the first substantive text in the Manual

and it was set forth in same typeface as the rest of the

Manual.

That the Manual also states that an employee “may be

discharged for cause” does not change our analysis. This

permissive language does not conflict with the disclaimer

that the Manual “does not constitute a contract of em-

ployment in whole or in part” or create an ambiguity

that can be construed in Moss’s favor. Cf. Perman v.

ArcVentures, Inc., 554 N.E.2d 982, 987, 196 Ill.App.3d 758

(Ill. App. Ct. 1990) (summary judgment denied on due

process claim where disclaimer in employee manual was

“not set off from the rest of the text, printed in capital

letters or titled” and manual stated that “discharges

must be approved in advance by the director of employee

relations or designees, and are subject to employee appeal

through established grievance procedures”) (emphasis

added). See also Seehawer v. Magnecraft Elec. Co., 714

F. Supp. 910, 912 (N.D. Ill. 1989) (denying summary

judgment on plaintiff ’s due process claim where employee

manual stated that “[e]mployees shall be discharged or

disciplined only for just cause” while employee state-

ment signed by plaintiff stated that “my employment

and compensation can be terminated, with or without

No. 05-3689 11

cause and notice, at any time, at the option of the Com-

pany or myself.”) (emphasis added).

Nor do the Manual’s mandatory notice procedures for

a discharge for cause allow Moss to state a due process

claim. An employee manual or handbook’s procedures do

not create an enforceable property right to a job. See

Simpkins v. Sandwich Community Hosp., 854 F.2d 215,

218 (7th Cir. 1988); Heck v. City of Freeport, 985 F.2d 305,

311 (7th Cir. 1993) (stating that “[m]ere procedural

rights . . . do not of themselves give rise to property

interests protected under the Fourteenth Amendment”).

Likewise, the provisions that state that “the rights of

department employees to voluntarily engage in political

activities and to make contributions must be recognized

and respected” and that “nothing should be done to

abridge the constitutional right of any employee to par-

ticipate in the political process” do not conflict with the

Manual’s disclaimer or otherwise create an ambiguity

that overcomes Illinois’ at-will presumption. Such lan-

guage sets forth the IDOT’s requirements for the conduct

of its employees. It does not establish a basis on which an

offer of employment may be found. Moreover, interpreting

such “language as establishing a just cause termination

protection simply ignores the reality of employment law

in Illinois and the need to read the Handbook as a coher-

ent whole.” Border v. City of Crystal Lake, 75 F.3d 270, 274

(7th Cir. 1996). The language of the Manual’s disclaimer is

clear: no employee reading the Manual could believe

reasonably that an employment contract offer had

been made. We find, therefore, that the district court

properly granted defendants’ Rule 12(c) motion for judg-

ment on the pleadings on Moss’s due process claim.

12 No. 05-3689

C. Qualified Immunity

The IDOT defendants raise the defense of qualified

immunity as an alternative basis on which to affirm

judgment in their favor, arguing that the law on this

issue was not clearly established at the time of Moss’s

termination. “Government officials performing discre-

tionary functions are entitled to qualified immunity

from suit ‘as long as their actions could reasonably have

been thought consistent with the rights they are alleged to

have violated.’ ” Kiddy-Brown, 408 F.3d at 352 (quoting

Anderson v. Creighton, 483 U.S. 635, 638, 107 S.Ct. 3034,

97 L.Ed.2d 523 (1987)).

To defeat a qualified immunity defense, a plaintiff

must satisfy two conditions: (1) the complaint must

adequately allege facts that, if true, would constitute a

violation of a constitutional right; and (2) the case law

must be “clearly established” at the time of the alleged

violation, so that a reasonable public official would have

known that his conduct was unlawful. Delgado v. Jones,

282 F.3d 511, 515-16 (7th Cir. 2002). As established above,

Moss has satisfied the first condition by pleading a viable

First Amendment claim. With regard to the second condi-

tion, the IDOT defendants argue that the law was

not clearly established that political loyalty was not an

appropriate job requirement for the Chief of the Highway

Sign Shop. Moss is not required to produce a case that

is “directly on point” to show that a right is clearly estab-

lished, however. Kiddy-Brown, 408 F.3d at 355 (quoting

Nabozny v. Podlesny, 92 F.3d 446, 456 (7th Cir. 1996)).

Rather, “[t]he question is whether a reasonable state

actor would have known that his actions, viewed in the

light of the law at the time, were unlawful.” Id.

We have accepted as true Moss’s allegation that polit-

ical affiliation is not an appropriate requirement for the

Chief of the Highway Sign Shop position because there is

No. 05-3689 13

nothing in the Chief’s job duties that made or makes

political considerations a requisite for that position. At

this point, we also have accepted as true, albeit implicitly,

that Moss was an IDOT employee who did not engage in

policymaking. As a result, Moss was an IDOT employee

who could not be terminated because of his political

affiliation. At the time of his termination, “it was well-

established that the First Amendment prohibits a state

official from dismissing, on political grounds, an employee

who was not charged with policymaking duties.” Kiddy-

Brown, 408 F.3d at 357. Judgment on the pleadings in

favor of the IDOT defendants on the basis of qualified

immunity is therefore inappropriate. The issue of

whether the IDOT defendants are entitled to qualified

immunity may be revisited and resolved in the district

court on a more complete record. See id.

III. Conclusion

For the foregoing reasons, we affirm the district court’s

entry of judgment on the pleadings in favor of defen-

dants on Moss’s due process claim but reverse the district

court’s entry of judgment on the pleadings in favor of de-

fendants on Moss’s First Amendment claim and remand

for further proceedings.

A true Copy:

Teste:

________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—1-2-07