The opinion
In the
United States Court of Appeals
For the Seventh Circuit
No. 08-3245
G ERALD C OVELL,
Plaintiff-Appellant,
v.
H ARMON P. M ENKIS, et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of Illinois.
No. 3:05-cv-03207-RM-BGC—Richard Mills, Judge.
A RGUED N OVEMBER 5, 2009—D ECIDED F EBRUARY 8, 2010
Before B AUER, M ANION and W ILLIAMS, Circuit Judges.
B AUER , Circuit Judge. After being terminated from
his employment, Gerald Covell filed an action under
42 U.S.C. § 1983. The district court entered summary
judgment for the Defendants. We affirm.
I. BACKGROUND
The Illinois Deaf and Hard of Hearing Commission
(“IDHHC”) is a state government agency that was estab-
2 No. 08-3245
lished after the Illinois General Assembly passed the Deaf
and Hard of Hearing Commission Act (“the Act”) in 1996.
IDHHC coordinates services for, and advocates on
behalf of, deaf and hard-of-hearing individuals in Illi-
nois. Gerald Covell became the Director of IDHHC
in November 1998, and served in that capacity until
August 8, 2003, when the IDHHC Commissioners (the
“Defendants”) voted to terminate him, effective immedi-
ately.
After being terminated, Covell filed suit, claiming that
the Defendants violated his property and liberty interest
rights under 42 U.S.C. § 1983, without due process.
First, Covell maintains that he had a property interest
in his employment, but was terminated without being
afforded a required pre-termination hearing or any post-
termination process to challenge his discharge. Second,
Covell contends that the Defendants deprived him of
his liberty interest in employment, by disseminating
false information related to his termination without
providing a name clearing hearing, and because of these
stigmatizing disclosures, he suffered a tangible loss of
other employment. Specifically, Covell alleges that the
Defendants disclosed that he was terminated for
viewing pornographic material on a state-issued laptop
computer while on state time and altering his own time
sheets.
In entering summary judgment for the Defendants, the
district court concluded that Covell did not have a prop-
erty interest in his position as Director of IDHHC and,
based on the language of the Act and in the bylaws,
Covell did not have an objectively reasonable basis for
No. 08-3245 3
believing that he had such an interest. In the alternative,
the district court held that even if Illinois law did give
Covell a property interest in his position under Illinois
law, that law was not clearly established, and accordingly,
the Defendants were entitled to qualified immunity.
Further, the district court held that Covell could not
prevail on his liberty interest claim because he could not
show that any individual Defendant publicly dis-
seminated any stigmatizing information regarding his
termination. Covell timely filed this appeal.
II. DISCUSSION
We review the district court’s grant of summary judg-
ment de novo, construing all facts and reasonable infer-
ences in Covell’s favor. Winsley v. Cook County, 563
F.3d 598, 602 (7th Cir. 2009). Summary judgment is
proper if the pleadings, discovery materials, disclosures,
and affidavits demonstrate no genuine issue of material
fact such that the Defendants are entitled to judgment as
a matter of law. Fed R. Civ. P. 56(c).
A. Property Interest
In order to make his due process claim, Covell must first
demonstrate that he had a constitutionally protected
property interest. Rujawitz v. Martin, 561 F.3d 685, 688 (7th
Cir. 2009) (citing Border v. City of Crystal Lake, 75 F.3d 270,
273 (7th Cir. 1996)); Moss v. Martin, 473 F.3d 694, 700 (7th
Cir. 2007). A person’s interest in a benefit, such as contin-
ued employment, constitutes “property” for due process
4 No. 08-3245
purposes only if “there are such rules or mutually explicit
understandings that support his claim of entitlement to
the benefit.” Border, 75 F.3d at 273. A protected
property interest in employment can arise from a
statute, regulation, municipal ordinance, or an express
or implied contract, such as “rules or understandings
that secure certain benefits and that support claims of
entitlement to those benefits.” Border, 75 F.3d at 273
(citations omitted).
Since Covell was employed in Illinois, we look to Illinois
law to determine whether he had a substantive property
interest in his employment with IDHHC. Moss, 473 F.3d
at 700. Under Illinois law, a person has a property
interest in his job where he has a legitimate expectation
of continued employment based on a legitimate claim of
entitlement. Id. (citations omitted). “To show a legitimate
expectation of continued employment, a plaintiff must
show a specific ordinance, state law, contract or under-
standing limiting the ability of the state or state entity
to discharge him.” Id. Covell argues that the administra-
tive rules and bylaws support his contention that he had
a legitimate expectation of continued employment.
2 Ill. Admin. Code § 3300.380(a), provides, in part, as
follows:
a) The Director shall be the executive officer of the
Commission; shall be hired, supervised, and
evaluated by the Commission; and shall serve
at the pleasure of the Commission. . . .
....
No. 08-3245 5
2) The Director shall be afforded the same rights
and privileges as outlined in the Personnel
Code [20 ILCS 415], except for hiring.
Similarly, Article VI, Section I of the Commission
Bylaws provides:
1. Director shall be the executive officer of the
Commission; shall be hired, supervised, and
evaluated by the Commission; and shall serve
at the pleasure of the Commission.
....
3. The Director shall be afforded the same rights
and privileges as outlined in the Personnel
Code (20 ILCS 415), except for hiring.
The Personnel Code, mentioned in both the Admin-
istrative Rules and Bylaws, provides a system of personnel
administration for the state government under the gov-
ernor, based on merit principles and scientific methods.
See 20 Ill. Comp. Stat. 415/2. Generally, directors of depart-
ment and members of commissions are exempted from
the Personnel Code. See 20 Ill. Comp. Stat. 415/4c(7),
amended by 2008 Ill. Legis. Serv. P.A. 95-728 (S.B. 970).
However, the Personnel Code provides for partial exemp-
tions for directors and other positions if the Civil
Service Commission determines that the position “in-
volve[s] either principal administrative responsibility
for the determination of policy or principal administra-
tive responsibility for the way in which policies are
carried out,” based upon written recommendation of the
Director of Central Management Services (“CMS”). 20 Ill.
6 No. 08-3245
Comp. Stat. 415/4d(3). Accordingly, provisions of the
Personnel Code, called “jurisdictions”, can be extended to
specified individuals if the CMS Director makes the
recommendation. The Personnel Code provides, in part:
No officer or employee under jurisdiction B, relating
to merit and fitness, who has been appointed under
the rules and after examination, shall be removed
discharged or demoted, or be suspended for a period
of more than 30 days, in any 12 month period, except
for cause. See 20 Ill. Comp. Stat. 415/11 (emphasis
added).
Therefore, if Covell was covered under jurisdiction B,
he could only be terminated for cause.
Covell does not argue that he was covered by the Per-
sonnel Code. See Reply Br. at 5. However, he claims that
he had a property interest in his employment because
he had “the same rights and privileges as outlined in
the Personnel Code [20 ILCS 415], except for hiring.” Based
on the language of the Personnel Code, Covell maintains
that he could not be terminated from his employment
absent good cause, and argues that the lack of either a pre-
disciplinary hearing or a prompt hearing following
the assessment to terminate him violated his rights
under 42 U.S.C. § 1983.
The Defendants dispute that Covell could only be
terminated for cause and maintain that Covell was an
“at will” employee who served “at the pleasure” of the
Commission. To the extent that Covell argues that the
Defendants intended to provide him an extension of
Personnel Code protection for all employment matters,
No. 08-3245 7
other than hiring, the Defendants assert that any
attempt would be beyond the Commission’s authority.
The Defendants note that the General Assembly specifi-
cally created a provision for extension of jurisdiction
within the Personnel Code, see 20 Ill. Comp. Stat. 415/4b,
but there is no evidence that the Defendants sought
to undertake this process in order to provide Covell
with all of its protections, except for the specific pro-
vision related to hiring. Covell maintains that the Com-
mission’s inclusion of the phrase “except for hiring” was
based on its desire to be able to hire a deaf director in
the future.
Viewing the facts in the light most favorable to Covell,
we conclude that he failed to sufficiently demonstrate
that he had a property interest in his employment
because he did not establish that there was a mutually
explicit understanding that he could only be terminated
for cause. Instead, the rules governing the Commission
make clear that Covell’s position as Director of IDHHC
was terminable at will. The language from 2 Ill. Admin.
Code § 3300.380(a) that states that the Director “shall be
hired, supervised, and evaluated by the Commission; and
shall serve at the pleasure of the Commission” as well as
the portion of the bylaws that state that he “shall serve
at the pleasure of the Commission” supports this con-
clusion. The Personnel Code, standing alone, does not
establish that Covell could only be terminated for cause,
as it provides multiple rights and privileges, and Covell
cannot establish that he is entitled to the protections
under jurisdiction B. To find a contrary interpretation, i.e.,
that Covell enjoyed the right to be employed except
8 No. 08-3245
for cause, would conflict with the previously stated
language that states Covell serves “at the pleasure of the
Commission.” As we conclude that Covell was an at-will
employee, it is unnecessary to discuss whether the Defen-
dants would be covered under qualified immunity.
B. Liberty Interest
When an individual is terminated from a position “for
stated reasons likely to make him all but unemployable
in the future, by marking him as one who lost his job
because of dishonesty or other job-related moral turpi-
tude,” due process must be provided. Lawson v. Sheriff of
Tippecanoe County, 725 F.2d 1136, 1139 (7th Cir. 1984). A
government employee’s liberty interests are implicated
where in terminating the employee the government
“make[s] any charge against him that might seriously
damage his standing and associations in the community”
or “impose[s] on him a stigma or other disability that
foreclose[s] his freedom to take advantage of other em-
ployment opportunities.” Bd. of Regents v. Roth, 408 U.S.
564, 573 (1972).
In order to prevail on a liberty interest claim, a plaintiff
must show “that (1) he was stigmatized by the
defendant’s conduct, (2) the stigmatizing information
was publically disclosed, and (3) he suffered a tangible
loss of other employment opportunities as a result of
public disclosure.” Townsend v. Vallas, 256 F.3d 661, 669-70
(7th Cir. 2001) (citations omitted). A plaintiff must demon-
strate that a named defendant was the individual who
made the disclosure; a “res ipsa loquitur[-]like approach,
No. 08-3245 9
while perhaps sufficient to establish that someone . . .
published the information, does not sufficiently establish
that the someone was [a named Defendant].” McMath v.
City of Gary, 976 F.2d 1026, 1031 (7th Cir. 1992) (emphasis
in original). Further, the specific stigmatizing state-
ments must be made public; statements made to
employees within a department are not considered
public dissemination. Id. at 1035-36.
In finding that Covell could not prevail on his liberty
interest claims, the district court reasoned that Covell
failed to demonstrate that any of the Defendants
disclosed the stigmatizing information. The district court
concluded that the Defendants cannot be liable under
42 U.S.C. § 1983 for actions of others, even if the other
individuals who disseminated the stigmatizing infor-
mation were affiliated in some way with the Commis-
sion and the Defendants.
In his appeal, Covell maintains that “[a] constitutional
violation under the Due Process Clause with respect to a
liberty interest claim is not the dissemination of informa-
tion, but instead the failure to provide a name clearing
hearing.” Appellant’s Br. at 29. Citing Mitchell v. Glover,
996 F.2d 164 (7th Cir. 1993), and Ratliff v. Milwaukee,
795 F.2d 612 (7th Cir. 1986), Covell contends that if the
dissemination was by the government, but not neces-
sarily by one of the Defendants, his liberty interest was
implicated because the government employer needs
only to have a role in disclosing the information. Ac-
cordingly, Covell asserts that because the release and
dissemination of the stigmatizing information had to
10 No. 08-3245
originate from either a named Defendant or a Com-
mission employee, a reasonable trier of fact could con-
clude that the Defendants set in motion the dissemina-
tion of information, which would be sufficient to set
forth a cognizable claim.
Like the district court, we disagree with Covell’s asser-
tion. McMath makes clear that a plaintiff must prove that
a defendant disseminated the stigmatizing information
to the public. This court cannot find any evidence that
any individual Defendant disseminated the stigmatizing
information to the public. The district court properly
discounted Mitchell and Ratliff, both of which named
the employing entity as a defendant and both of which
held that the plaintiff failed to establish a liberty interest
claim.
On appeal, Covell notes that while the local governmen-
tal defendants in Mitchell and Ratliff could be named as
defendants, the Commission, as an agency of the state,
could not be joined in an action under 42 U.S.C. § 1983.
App. Br. at 30. He then cites to Hannon v. Turnage, 892
F.2d 693 (7th Cir. 1990), contending that like the case at
bar, Hannon did not require as a condition of liability
that the individual defendants participated in the dissemi-
nation of information. We do not find that Hannon sup-
ports Covell’s argument, as the Hannon court concluded
that there was no liberty interest deprivation. Hannon,
892 F.2d at 660. We further note that even if 42 U.S.C.
§ 1983 permitted an entity like the Commission to be
named in a lawsuit, Covell would still need to establish
that a named defendant violated his liberty interests. See
No. 08-3245 11
McMath (“Furthermore, the City of Gary cannot be held
liable on this claim unless [the mayor], an official whose
acts constituted official policy of the City of Gary, violated
[the plaintiff’s] liberty interests.”) We conclude that
Covell failed to sufficiently demonstrate that the Defen-
dants’ actions deprived him of a liberty interest.
III. CONCLUSION
For the reasons stated above, we A FFIRM the judgment
of the district court.
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