Akande, Adetunji v. Grounds, Randall

In the

United States Court of Appeals

For the Seventh Circuit

No. 07-3800

A DETUNJI A KANDE,

Plaintiff-Appellant,

v.

R ANDALL G ROUNDS, T ERRY G UY,

JEANIE C AMPANELLA, and D EE

D EE B ROOKHART,

Defendants-Appellees.

Appeal from the United States District Court

for the Southern District of Illinois.

No. 05-C-4212—J. Phil Gilbert, Judge.

A RGUED D ECEMBER 9, 2008—D ECIDED F EBRUARY 9, 2009

Before F LAUM, W OOD , and W ILLIAMS, Circuit Judges.

F LAUM , Circuit Judge. Adetunji Akande alleged that

the defendants—all employees of the Illinois Department

of Corrections—deprived him of a property interest in

his employment in violation of the due process clause of

the Constitution. The district court granted summary

judgment to defendants, finding that they were entitled

2 No. 07-3800

to qualified immunity because Akande could not estab-

lish that he had been subject to a constitutional violation.

For the reasons explained below, we affirm the judg-

ment of the district court.

I. Background

Akande began working for the Illinois Department of

Corrections (“IDOC”) in March 1990. After eighteen

months, he was transferred to Robinson Correctional

Center in Robinson, Illinois, where he worked in the

clinical services division. The clinical services division

was responsible for providing psychological, vocational

and substance abuse counseling to prison inmates as

well as attending to some inmate disciplinary matters.

The division was comprised of three levels of employees:

the clinical services supervisor, who oversaw the

division; clinical casework supervisors, who served as

intermediate managers; and correctional counselors.

During the 1990s, Akande rose through the ranks at

Robinson and in January 2003 he was promoted to the

position of clinical casework supervisor. The clinical

casework supervisor position was subject to the Illinois

Personnel Code, 20 ILCS 415/1 et seq., which provided

that employees could not be terminated or demoted

without cause.

Clinical casework supervisors at Robinson had a

number of responsibilities. They were involved in

making recommendations to the warden to resolve disci-

plinary allegations (or “tickets”) against inmates. Typically,

correctional counselors heard “minor tickets” while

No. 07-3800 3

“major tickets” were heard by a two-member panel

known as the Adjustment Committee. One of the job

duties of the clinical casework supervisor was to serve as

a member of the Adjustment Committee. Corrections

counselors were to enter reports on minor tickets into

Robinson’s Disciplinary Tracking System (“DTS”), while

clinical casework supervisors were expected to enter the

major ticket reports. Each DTS entry took about ten

minutes, and there were approximately five to ten

major ticket hearings per day.

Among other responsibilities, the clinical casework

supervisor job description listed duties such as

“supervis[ing] delivery of counseling services,”

“assign[ing] work,” and “complet[ing] and sign[ing]

peformance evaluations” for correctional counselors. In

addition to these duties, the job description also tasked

the clinical casework supervisor with “serv[ing] on

various institutional committees” (including the Adjust-

ment Committee). The job description also included a

“catch-all” clause stating that a clinical casework super-

visor “[p]erforms other duties as required or assigned

which are reasonably within the scope of those

enumerated above.”

As mentioned above, Akande began his employment

as a casework supervisor at Robinson in January 2003.

At this time, Richard Cervantes (“Cervantes”) was also

serving as a clinical casework supervisor. However, in

the fall of 2003, Cervantes was promoted to the position

of acting clinical services supervisor, leaving Akande as

the only clinical casework supervisor.

4 No. 07-3800

In late 2003 or early 2004, Randall Grounds was ap-

pointed warden of Robinson. Grounds consulted with

Cervantes about Akande’s job performance and came to

believe that Akande was not performing his duties

well. Specifically, Grounds was made aware of com-

plaints that Akande was not inputting Adjustment Com-

mittee hearing reports into the DTS. Based on this infor-

mation, Grounds directed Akande to personally enter

data regarding major and minor ticket disciplinary hear-

ings into the DTS at the end of each day, regardless

of whether he was a hearing officer at that proceeding.1

According to Akande, this task consumed most of his

time and he began delegating this work to corrections

counselors. Grounds again ordered Akande to enter all

major and minor tickets into DTS. However, Akande

continued to delegate this responsibility to corrections

counselors.

Because he refused to follow Warden Grounds’s order,

Akande was referred for discipline. The prison held

hearings on each disciplinary referral. In his defense,

Akande claimed that he was entitled to delegate the

task of inputting DTS tickets notwithstanding Warden

Grounds’s instruction to the contrary. Three separate

disciplinary officers rejected Akande’s defense. Plaintiff

received an oral reprimand, a written reprimand, and a

1

The parties dispute whether Grounds ordered Akande to

put both major and minor ticket information into the DTS.

We have credited Akande’s version of events, as is appro-

priate at the summary judgment stage.

No. 07-3800 5

three-day suspension. In response, Akande filed six

separate grievances under his union’s collective

bargaining agreement, claiming that he had been unfairly

subjected to discipline. These complaints were settled

or resolved prior to arbitration.

In January 2004, Grounds informed Akande that he

would no longer have responsibility for supervising

correctional counselors. However, Akande continued to

perform some of his regular duties, including presiding

over major ticket disciplinary hearings and making recom-

mendations regarding ticket dispositions, reviewing

inmates’ requests for transfer and recommending

transfer dispositions, and scheduling and lecturing in

the Pre-Start Program (a series of classes that prepared

inmates for their release).2

On March 3, 2004, Warden Grounds presented Akande

with a memorandum entitled “Responsibilities of Case-

work Supervisor.” It stated that all data entry for major

(though not minor) disciplinary tickets was the responsi-

bility of the casework supervisor. Grounds asked Akande

to sign the memo, but Akande refused. Akande left

work, claiming that he had a headache. That same day,

Akande went on extended disability leave following a

diagnosis of depression. He never returned to his job

2

Defendants point to evidence that Akande—despite his claim

that he was barred from all supervisory duties—still supervised

counselors with respect to their inmate escape risk assess-

ments and with respect to their workloads. However, we

again credit Akande’s version of events at the summary judg-

ment stage.

6 No. 07-3800

at Robinson. On leave, Akande received disability pay-

ments that were significantly less than his salary at the

correctional center.

In November 2005, Akande brought the present law-

suit. He alleged that beginning in late 2003 he was effec-

tively removed from his position as a casework supervisor

in which he had a constitutional property interest. The

district court granted summary judgment to defendants,

concluding that they were entitled to qualified immunity.

Specifically, the district court held that Akande had

“simply failed to present evidence from which a rea-

sonable jury could conclude that he was deprived of a

protected interest.” Because it concluded that Akande

was not deprived of a property interest, it did not

address whether Akande was provided sufficient

process and that Akande’s alleged constitutional right

was not clearly established.

II. Discussion

We review an order granting summary judgment

de novo, construing all facts and drawing all reasonable

inferences in favor of the non-moving party. Russell v.

Harms, 397 F.3d 458, 462 (7th Cir. 2005). Summary judg-

ment is appropriate if “ ‘the pleadings, depositions, an-

swers to interrogatories, and admissions on file, together

with the affidavits, if any, show that there is not genuine

issue as to any material fact and that the moving party

is entitled to a judgment as a matter of law.’ ” Isbell v.

Allstate Co., 418 F.3d 788, 793 (7th Cir. 2005) (quoting

Fed. R. Civ. P. 56(c)).

No. 07-3800 7

Qualified immunity shields government officials from

liability for civil damages where their conduct does not

violate clearly established statutory or constitutional

rights of which a reasonable person would have known.

Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). In Saucier

v. Katz, the Supreme Court established a two-step

inquiry for courts ruling upon the qualified immunity

issue.3 See Saucier v. Katz, 533 U.S. 194, 201 (2001). To

determine whether an official is entitled to qualified

immunity, courts decide (1) whether the facts alleged

or shown by the plaintiff make out a violation of a con-

stitutional right, and (2) if so, whether that right was

“clearly established” at the time of the defendant’s

alleged misconduct. Id. at 201. If it is clear that there

has been no constitutional injury, we need not proceed to

the second step: the officials are entitled to immunity. Id.

The threshold question for a procedural due process

claim is whether there has been an unconstitutional

deprivation of life, liberty, or property. Akande claims

that he was deprived of a property interest in his posi-

tion as a casework supervisor at Robinson. In evaluating

Akande’s claim on appeal, it is important to understand

3

The Supreme Court has recently clarified that the Saucier

sequence is not an inflexible requirement. See Pearson v.

Callahan, ___ U.S. ___, ___ S.Ct. ___, 2009 WL 159429, *9 (Jan. 21,

2009). However, courts are still free to follow the Saucier

protocol where, as here, it facilitates the expeditious disposi-

tion of a case. See id. (“Although we now hold that the

Saucier protocol should not be regarded as mandatory in all

cases, we continue to recognize that it is often beneficial.”).

8 No. 07-3800

that property interests are not created by the United

States Constitution. Rather, they are created and defined

by existing rules or understandings that stem from an

independent source such as state law-rules. Ulichny v.

Merton Community School Dist., 249 F.3d 686, 700 (7th Cir.

2001) (citations omitted); Atterberry v. Sherman, 453 F.3d

823, 826 (7th Cir. 2006) (citation omitted). Here, state

law defines Akande’s property right as the right not to

be removed, discharged, demoted, or suspended for

more than thirty days without cause. 20 ILCS 415/11

(2006); 20 ILCS 415/8b.16; see also Atterberry, 453 F.3d at

826 (also considering a procedural due process claim

made under 20 ILCS 415/11). Illinois law defines demo-

tion as the “assignment of an employee to a vacant posi-

tion in a class having a lower maximum permissible

salary or rate than the class from which the demotion

was made for reasons of inability to perform the work of

the class from which the demotion was made.” 80 Ill.

Admin. Code § 302.470(a). Here, the undisputed evidence

shows that Akande was not assigned to a vacant position

with a lower salary. He was not terminated or told to

leave his employment. Rather, his job duties were

altered while he remained at the same position and

received the same salary. Under Illinois law, these

changes did not constitute a demotion, so Akande was

not deprived of a property interest in his employment.

This court’s decision in Atterberry confirms that Akande

cannot establish a constitutional deprivation here. See

Atterberry, 453 F.3d at 825-28. In Atterberry, an Illinois

employee in the Department of Professional Regulation

alleged that he was effectively demoted without due

No. 07-3800 9

process in violation of Illinois law. Id. at 825. He alleged

that he had been stripped of his supervisory responsi-

bilities, given an undesirable workspace (a metal desk

and a broken chair), and was being required to perform

the duties of a lower level employee. See id. at 824-25.

However, the employee retained his job title and salary.

Id. at 825, 827. This court affirmed summary judgment

to defendants because the facts, even when viewed in

the light most favorable to the plaintiff, “le[ft] no am-

biguity” regarding the constitutional issue. Id. at 827. The

employee’s only expectation under state law was that

he would “not be subjected to reduction in salary or

rate.” Id. Because the employee was not deprived of these

expectations, “he was not deprived of a cognizable consti-

tutional property interest.” Id. It thus appears that

Atterberry forecloses Akande’s argument that the

alteration of his job duties (but not of his title or salary)

was a constitutional deprivation.

Akande attempts to distinguish Atterberry by stating

that it dealt with whether the employee’s rights were

clearly established and not with whether a deprivation

occurred. However, this is not an accurate characteriza-

tion of Atterberry, for that case—in analyzing the

qualified immunity issue—decisively stated that the

facts did “not show any violation of a constitutional

right.” Id. at 826.

Akande also argues that a decision in defendants’ favor

is contrary to other decisions of this court, namely

Sonnleitner v. York, 304 F.3d 704 (7th Cir. 2002), Barrows

v. Wiley, 478 F.3d 776 (7th Cir. 2007) and Wozniak v.

10 No. 07-3800

Conry, 236 F.3d 888 (7th Cir. 2001). Akande’s citations to

Sonnleitner and Barrows are unavailing. He claims that

they stand for the proposition that any action by a

state employer that impacts an employee’s future

income is a constitutionally violative deprivation of

property. But those cases actually hold that in order to

recover for a constitutional deprivation, the plaintiff

must show an economic loss. See Sonnleitner, 304 F.3d

at 716 (actionable deprivation of property requires both

“the loss of position” and “effects on future income”);

Barrows, 478 F.3d at 780; id. at 780-81 (the “first step of the

due process analysis requires us to consider initially

whether Barrows had property interests in his [job], and

secondarily whether he suffered economic harm from

a property deprivation”). A showing of economic harm

is a requirement for damages, not a theory for estab-

lishing a constitutional deprivation. Because here,

Akande has not shown that he was deprived of a con-

stitutional property interest, it is not relevant whether

he suffered any economic loss due to the personnel

actions at the correctional center.

Nor does Wozniak help Akande’s case. In Wozniak, a

tenured professor at the University of Illinois contended

that he was barred from all teaching, barred from all

research, and—despite holding the post of professor for

twenty-eight years—assigned to manage his depart-

ment’s website, “effectively shuttl[ing] [him] from the

faculty to the administrative staff.” Wozniak, 236 F.3d

at 889. We found that the professor had been construc-

tively discharged because the “employer . . . strip[ped] an

employee of the ordinary incidents of the job, in a way

No. 07-3800 11

that could lead a reasonable, self-respecting person to

resign.” Wozniak, 236 F.3d at 889-90. However the evi-

dence here does not establish that Akande suffered a

change in working conditions similar to that in Wozniak.

As discussed above, though Grounds stated that he

would no longer be supervising correctional counselors,

Akande continued to perform many of his regular

duties, including presiding over major ticket disciplinary

hearings and making recommendations regarding ticket

dispositions, reviewing inmates’ requests for transfer

and recommending transfer dispositions, and scheduling

and lecturing in the Pre-Start Program. Akande’s change

in duties is not similar to the change in duties in

Wozniak, where the employee was forbidden from per-

forming all of his core job functions and forced into

work that was outside his area of education and training.

It may be true that Akande was unhappy with the

alteration of his duties. Regardless, that alteration did not

amount to a “demotion” under Illinois law because he

remained at the same job post and pay grade, see 20 ILCS

415/11 (2006); 20 ILCS 415/8b.16; Atterberry, 453 F.3d at

827, and was not stripped of all of his core job functions,

see Wozniak, 236 F.3d at 889-90.

Because Akande has failed to show that he was sub-

jected to a constitutional deprivation, we need not

inquire whether the right he invokes was clearly estab-

lished at the time of the alleged violation. See Saucier, 533

U.S. at 206. The defendants are entitled to qualified im-

munity.

12 No. 07-3800

III. Conclusion

Because Akande has not shown that his constitutional

rights were violated, the defendants are entitled to quali-

fied immunity. We A FFIRM the judgment of the district

court.

2-9-09