Joshua Cheli v. Taylorville Community School D

In the

United States Court of Appeals

For the Seventh Circuit

____________________

No. 20-2033

JOSHUA L. CHELI,

Plaintiff-Appellant,

v.

TAYLORVILLE COMMUNITY SCHOOL DISTRICT, et al.,

Defendants-Appellees.

____________________

Appeal from the United States District Court for the

Central District of Illinois.

No. 19-cv-03085 — Sue E. Myerscough, Judge.

____________________

SUBMITTED DECEMBER 10, 2020* — DECIDED FEBRUARY 3, 2021

____________________

Before SYKES, Chief Judge, and FLAUM and KANNE, Circuit

Judges.

FLAUM, Circuit Judge. Taylorville Community School Dis-

trict #3 (the “District”) terminated plaintiff Joshua Cheli. A

*We granted the parties’ joint motion to decide this case without oral ar-

gument because the briefs and record adequately present the facts and le-

gal arguments, and oral argument would not significantly aid the Court.

Fed. R. App. P. 34(a)(2)(C).

2 No. 20-2033

collective bargaining agreement between the District and its

employees provided, among other things, that an “employee

may be … discharged for reasonable cause.” Cheli sued the

District and others for violating his procedural due process

rights under the Fourteenth Amendment. The district court

dismissed his case because it found that he lacked a protected

property interest in his continued employment. We disagree.

The collective bargaining agreement established that Cheli

could not be terminated except “for reasonable cause,” which

created a protected property interest for which he was enti-

tled to due process. We accordingly reverse the district court.

I. Background

Cheli worked as a computer systems administrative assis-

tant for the District from 2014 until 2018. He reported to the

District’s superintendent Gregg Fuerstenau, Director of Com-

puter Services Chris Kuntzman, and Board of Education of

Taylorville CUSD #3 (the “Board”), also defendants in this

case. On September 28, 2018, with about twenty-five minutes’

notice, Fuerstenau and Kuntzman ushered Cheli to a meeting.

At the meeting, which lasted only a few minutes, Fuerstenau

and Kuntzman terminated Cheli because a female student

had alleged that Cheli had sexually harassed her three weeks

prior. Cheli denied the allegations, but Fuerstenau and Kuntz-

man told him the decision was a foregone conclusion.

The Board memorialized Cheli’s termination by entering

a resolution on October 9, 2018, which retroactively took ef-

fect on September 28. Cheli never received notice of the Octo-

ber 9 Board meeting at which the Board passed the resolution,

nor did Cheli receive written notice of the charges or the evi-

No. 20-2033 3

dence against him considered by the Board. Based on the res-

olution, the Board sent Cheli a notice of termination via certi-

fied mail stating that “[t]he basis or grounds for discharge in-

clude incompetence.” That notice informed Cheli that he

could request the written report submitted by Fuerstenau

stating the reasons for his discharge. However, the District

did not provide the report upon Cheli’s request.

Central to this dispute is the collective bargaining agree-

ment that governed Cheli’s employment with the District.

Taylorville’s Educational Support Personnel, Cheli’s bargain-

ing unit, had entered into a collective bargaining agreement,

the Master Agreement, with the District for the 2017–2018 and

2018–2019 school years. Article VII of the Master Agreement,

titled “Discipline or Dismissal,” provides in full:

8.1 An employee may be disciplined, sus-

pended, and/or discharged for reasona-

ble cause. Grounds for discharge and/or

suspension shall include, but not be lim-

ited to, drunkenness or drinking or car-

rying intoxicating beverages on the job,

possession or use of any controlled

and/or illegal drug, dishonesty, insubor-

dination, incompetency, or negligence in

the performance of duties.

8.2 A conference with the employee shall be

held prior to any suspension and/or dis-

charge.

8.3 An employee shall have the right to a

representative of his/her choice in any

4 No. 20-2033

meeting which may result in suspension

and/or discharge.

8.4 A written explanation for the suspension

and/or discharge shall be given the em-

ployee so affected.

8.5 Upon initial employment with Taylor-

ville Community Unit School District #3,

non-certified employees will serve a one

hundred twenty (120) day probationary

period. During the period, the probation-

ary non-certified employee will be an at-

will employee. If the employee’s work is

deemed unsatisfactory by the Admin-

istration and the Board during this pe-

riod, the Board, at its discretion, may ter-

minate the employment.

Another document, the District’s Policy Manual (the

“Manual”), incorporated the Master Agreement and further

elaborated on employee termination policies within the Dis-

trict. That Manual contains a provision titled “Employment

At-Will,” providing that:

Unless otherwise specifically provided, District

employment is at-will, meaning that employ-

ment may be terminated by the District or em-

ployee at any time for any reason, other than a

reason prohibited by law, or no reason at all.

Nothing in School Board policy is intended or

should be construed as altering the employment

at-will relationship.

No. 20-2033 5

Exceptions to employment at-will may include

employees who are employed annually, have

an employment contract, or are otherwise

granted a legitimate interest in continued em-

ployment. The Superintendent is authorized to

make exceptions to employing non-licensed

employees at-will but shall maintain a record of

positions or employees who are not at-will.

Based on his view that the Master Agreement gave him a

protected property interest in his employment, Cheli sued the

defendants under 42 U.S.C. § 1983, claiming the defendants

violated his right to procedural due process under the Four-

teenth Amendment. His suit included two counts, alleging he

had a protected property interest in his employment and de-

fendants violated his procedural due process rights by termi-

nating him without (1) a predeprivation and (2) a postdepri-

vation hearing. The defendants filed a motion to dismiss for

failure to state a claim under Federal Rule of Civil Proce-

dure 12(b)(6). The district court granted defendants’ motion,

finding that the facts Cheli alleged were “insufficient to per-

mit a reasonable inference that [Cheli] ha[d] a constitutionally

protected property interest in his continued employment

with [the District].”

II. Discussion

“We review a district court’s grant of a 12(b)(6) motion to

dismiss de novo.” Roberts v. City of Chicago, 817 F.3d 561, 564

(7th Cir. 2016). We also review a district court’s interpretation

of state law de novo. McCammon v. Ind. Dep’t of Fin. Insts.,

973 F.2d 1348, 1350 (7th Cir. 1992) (citing Salve Regina Coll. v.

6 No. 20-2033

Russell, 499 U.S. 225, 231 (1991)). To survive a motion to dis-

miss, Cheli must plead “enough facts to state a claim to relief

that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S.

544, 570 (2007). We must “construe the complaint in the light

most favorable to the plaintiff, accepting as true all well-

pleaded facts alleged, and drawing all possible inferences in

[his] favor.” Tamayo v. Blagojevich, 526 F.3d 1074, 1081 (7th Cir.

2008).

The Due Process Clause of the Fourteenth Amendment

provides that “[n]o state shall … deprive any person of life,

liberty, or property, without due process of law.” U.S. Const.

amend. XIV, § 1. Relevant to this case, “[t]o demonstrate a

procedural due process violation of a property right, the

plaintiff must establish that there is ‘(1) a cognizable property

interest; (2) a deprivation of that property interest; and (3) a

denial of due process.’” Khan v. Bland, 630 F.3d 519, 527 (7th

Cir. 2010) (quoting Hudson v. City of Chicago, 374 F.3d 554, 559

(7th Cir. 2004)).

Cheli “cannot under Section 1983 complain of procedural

due process violations unless the state has first deprived

him … of such a constitutionally protected [property] inter-

est.” See Lekas v. Briley, 405 F.3d 602, 607 (7th Cir. 2005). There-

fore, “the threshold question is whether a protected property

interest actually exists.” Cole v. Milwaukee Area Tech. Coll. Dist.,

634 F.3d 901, 904 (7th Cir. 2011). Cheli and the defendants

agree that the only issue on appeal is whether the Master

Agreement gave Cheli a protected property interest in his em-

ployment.

Property interests are not inherent in the Constitution;

“[r]ather, they are created and their dimensions are defined

No. 20-2033 7

by existing rules or understandings that stem from an inde-

pendent source such as state law.” Bd. of Regents of State Colls.

v. Roth, 408 U.S. 564, 577 (1972); see also Bishop v. Wood,

426 U.S. 341, 344 (1976) (“[T]he sufficiency of the claim of en-

titlement must be decided by reference to state law.”). We

therefore determine whether Cheli had a protected property

interest in his employment with reference to Illinois law, the

law of the state where Cheli was employed. See Moss v. Mar-

tin, 473 F.3d 694, 700 (7th Cir. 2007).

“Under Illinois law, a person has a property interest in his

job only where he has a legitimate expectation of continued

employment based on a legitimate claim of entitlement.” Id.

Accordingly, “[t]o show a legitimate expectation of continued

employment, a plaintiff must show a specific ordinance, state

law, contract or understanding limiting the ability of the state

or state entity to discharge him.” Id. (quoting Krecek v. Bd. of

Police Comm’rs of La Grange Park, 646 N.E.2d 1314, 1318–19 (Ill.

App. Ct. 1995)). Illinois law presumes “an employment rela-

tionship without a fixed duration is terminable at will.” See

Duldulao v. Saint Mary of Nazareth Hosp. Ctr., 505 N.E.2d 314,

317–18 (Ill. 1987). However, that presumption “can be over-

come by demonstrating that the parties contracted other-

wise.” Id. at 318. “Property interests in employment may be

created by express or implied contracts ….” Farmer v. Lane,

864 F.2d 473, 478 (7th Cir. 1988).

Turning to the facts at hand, Cheli points to the Master

Agreement as the contract establishing that he had a legiti-

mate expectation of continued employment. Generally, to

show a protected property interest in the employment con-

text, “the terms of employment must provide that termination

will only be ‘for cause’ or ‘otherwise evince mutually explicit

8 No. 20-2033

understandings of continued employment.’” See Cromwell v.

City of Momence, 713 F.3d 361, 364 (7th Cir. 2013) (quoting

Omosegbon v. Wells, 335 F.3d 668, 674 (7th Cir. 2003)). A collec-

tive bargaining agreement with such a provision could create

a property interest for due process purposes. See, e.g., Brock v.

Roadway Express, Inc., 481 U.S. 252, 260–61 (1987) (noting that

the Secretary of Labor conceded that a collective bargaining

agreement requiring termination only for cause could “con-

stitute[] a property interest protected by the Fifth Amend-

ment”); Roman v. U.S. Postal Serv., 821 F.2d 382, 386 (7th Cir.

1987) (“This property interest is created by the collective bar-

gaining agreement between the Postal Service and the Union,

which provides that no employee shall be disciplined or dis-

charged ‘without just cause.’”).

Therefore, the essential question on appeal is whether the

Master Agreement provided the District could only terminate

Cheli for cause. We interpret the plain language of the Master

Agreement to answer that question. See, e.g., Lashbrook v. Oerk-

fitz, 65 F.3d 1339, 1346 (7th Cir. 1995) (construing plain lan-

guage of employment contract to determine whether it cre-

ated job security); Hohmeier v. Leyden Cmty. High Schs. Dist.

212, 954 F.2d 461, 464 (7th Cir. 1992) (assessing manual under

Duldulao framework to determine whether a personnel man-

ual created a contractual right that overcame Illinois’s at-will-

employment presumption). We proceed, then, by addressing

Sections 8.1, 8.5, and 8.2–8.4 of the Master Agreement in turn.

A. Section 8.1

Section 8.1 of Article VII of the Master Agreement pro-

vides “[a]n employee may be disciplined, suspended, and/or

discharged for reasonable cause.” The parties appear to agree

that the “reasonable cause” language is similar to “just cause”

No. 20-2033 9

or “for cause” language that courts regularly hold to create an

expectation of continued employment for due process pur-

poses. See Logan v. Zimmerman Brush Co., 455 U.S. 422, 430

(1982) (“The hallmark of property, the Court has emphasized,

is an individual entitlement grounded in state law, which can-

not be removed except ‘for cause.’”); Cain v. Larson, 879 F.2d

1424, 1426 (7th Cir. 1989) (“In order to give rise to a constitu-

tionally protected property interest, a statute or ordinance

must go beyond mere procedural guarantees to provide some

substantive criteria limiting the state’s discretion—as can be

found, for example, in a requirement that employees be fired

only ‘for cause.’”); see also Roman, 821 F.2d at 386 (“This prop-

erty interest is created by the collective bargaining agree-

ment …, which provides that no employee shall be disci-

plined or discharged ‘without just cause.’”). We must there-

fore determine whether Section 8.1’s specific language (“may

be … discharged for reasonable cause”) allows defendants to

terminate Cheli only for “reasonable cause.” If that language

is mandatory, then the agreement overcomes the at-will pre-

sumption under Illinois law and establishes a protectable

property interest. Cheli argues that the language is manda-

tory such that defendants may only terminate employees “for

reasonable cause.” Defendants, by contrast, argue the lan-

guage is permissive because while they may terminate “for

reasonable cause” they are not required to find “reasonable

cause” prior to terminating an employee. They therefore con-

tend that the district court correctly concluded that this “per-

missive language does not create a property interest in con-

tinued employment.” We disagree.

We hold that the language of Section 8.1 mandates the

only way defendants “may” terminate its employees who are

party to the agreement: with a showing of “reasonable cause.”

10 No. 20-2033

Section 8.1 imposes a requirement that defendants find “rea-

sonable cause” to terminate an employee like Cheli. Per Sec-

tion 8.1, on the condition of a finding of reasonable cause, de-

fendants have discretion whether to take disciplinary action.

Inversely, they cannot terminate employees without satisfy-

ing that reasonable-cause condition, which is to say the

“state’s discretion is clearly limited such that the plaintiff can-

not be denied the interest unless specific conditions are met.”

Khan, 630 F.3d at 527 (internal quotation marks omitted)

(quoting Brown v. City of Mich. City, Ind., 462 F.3d 720, 729 (7th

Cir. 2006)); see also A. Scalia & B. Garner, Reading Law: The In-

terpretation of Legal Texts 112 (2012) (analyzing the text “[t]he

tenant may vacate the premises on 30 days’ written notice” to

mean that when the condition is satisfied, the tenant has per-

mission to vacate). Therefore, Cheli had a reasonable expecta-

tion in his continued employment because Section 8.1 con-

fined defendants’ discretion to terminate him. Flowing from

the limits placed on defendants’ discretion, then, Cheli en-

joyed a protected property interest for the purposes of due

process.

The remainder of Section 8.1 reinforces our view that this

provision constrains defendants’ otherwise wide latitude.

Specifically, Section 8.1 lists what employee conduct might

establish “reasonable cause” for dismissal: “drunkenness or

drinking or carrying intoxicating beverages on the job, pos-

session or use of any controlled and/or illegal drug, dishon-

esty, insubordination, incompetency, or negligence in the per-

formance of duties.” This list of grounds for discipline, as

with the sentence preceding it requiring “reasonable cause,”

“establish[ed] a framework of factual conditions delimiting

entitlements which are capable of being explored at a due pro-

cess hearing.” Khan, 630 F.3d at 527 (quoting Fincher v. S. Bend

No. 20-2033 11

Heritage Found., 606 F.3d 331, 334 (7th Cir. 2010)). If defend-

ants needed no reason at all to terminate employees, as is the

case for at-will employees, this language would be mere “sur-

plusage.” See Curia v. Nelson, 587 F.3d 824, 829 (7th Cir. 2009)

(quoting Coney v. Rockford Life Ins. Co., 214 N.E.2d 1, 3 (Ill.

App. Ct. 1966)).

Our decision in McCammon v. Indiana Department of Finan-

cial Institutions further supports our conclusion regarding Sec-

tion 8.1. In McCammon, we held that language comparable to

Section 8.1 created a property interest. In that case analyzing

Indiana law,1 we interpreted a statute that provided that

“[a]ny of the … employees … may be removed, at any

time … for inefficiency, incompetency, or neglect of or failure

to perform their duties.” McCammon, 973 F.2d at 1350 (em-

phasis altered). We held the plaintiffs “had a protectible prop-

erty interest in their employment,” id. at 1353, even though

the “may be removed” language (much like the “may be …

discharged” language here) could be characterized as permis-

sive. We agreed with the plaintiffs’ contention that reading

the statute as merely permissive “would do violence to the

language of the provision, because [i]t would then be neces-

sary to read the statute as ‘… may be removed … for ineffi-

ciency, incompetency, or neglect of or failure to perform their

duties [or for any other reason, or for no reason at all].’” Id. at 1351

1 While McCammon concerned Indiana law, Indiana and Illinois law share

similarities with respect to the issues before us. Both states provide a re-

buttable presumption of at-will employment. Moreover, both states rely

on traditional canons of interpretation to interpret legal texts (statutes in

McCammon and contracts in this case). As such, McCammon provides help-

ful guideposts for our analysis, even though it is neither binding on us nor

was cited by the parties here.

12 No. 20-2033

(alteration in original) (internal quotation marks omitted).

Here, defendants ask us to do that very violence to the Master

Agreement and read “may be … discharged for reasonable

cause” as instead saying “may be … discharged for reasona-

ble cause [or for any other reason, or no reason at all.]” We decline

to rewrite the Master Agreement. See Thompson v. Gordon,

948 N.E.2d 39, 51 (Ill. 2011) (“[A] court cannot alter, change or

modify existing terms of a contract, or add new terms or con-

ditions to which the parties do not appear to have assented.”).

We disagree with the district court’s conclusion that the

language is permissive because adopting that reading would

treat Section 8.1 as surplusage. Under Illinois law,

[i]n construing contracts, to determine their in-

tent, it is long established that a construction

should be adopted, if possible, which ascribes

meaning to every clause, phrase and word used;

which requires nothing to be rejected as mean-

ingless, or surplusage; which avoids the neces-

sity of supplying any word or phrase that is not

expressed; and which harmonizes all the vari-

ous parts so that no provision is deemed con-

flicting with, or repugnant to, or neutralizing of

any other.

Curia, 587 F.3d at 829 (quoting Coney, 214 N.E.2d at 3); see also

Thompson, 948 N.E.2d at 47 (“A court will not interpret a con-

tract in a manner that would nullify or render provisions

meaningless, or in a way that is contrary to the plain and ob-

vious meaning of the language used.”). We therefore must in-

terpret the Master Agreement—a contract—as establishing le-

gal rights distinct from what would have existed in its ab-

sence, lest we render that contract meaningless. Defendants

No. 20-2033 13

would have us construe the Master Agreement to allow de-

fendants to fire its employees without restriction, but the Mas-

ter Agreement would not have been necessary to give defend-

ants this authority. Illinois law would have presumptively

found Cheli an at-will employee in the Master Agreement’s

absence. Hartlein v. Ill. Power Co., 601 N.E.2d 720, 728 (Ill. 1992)

(explaining that employers “may discharge an employee-at-

will for any reason or for no reason”). Alternatively, defend-

ants suggest that Section 8.1 merely provides one way they

may terminate employees, but as defendants acknowledge,

“all employees in Illinois may be dismissed for cause.”

Clearly Section 8.1 does not purport to restate this truism but

rather states that “reasonable cause” is the only way to dismiss

these employees. Accordingly, Section 8.1 overrides the at-

will-employment presumption in Illinois and raises the bar

for what defendants must find before terminating its employ-

ees. In so doing, Section 8.1 vests its employees, like Cheli,

with protected property interests.

Defendants’ attempt to analogize this case to a trio of cases

in which we held there was no protectable property interest

does not alter our analysis. To defend their view that Sec-

tion 8.1 only permitted, not required, them to terminate Cheli,

defendants point to Flaningam v. County of Winnebago, 243 F.

App’x 171 (7th Cir. 2007), Border v. City of Crystal Lake, 75 F.3d

270 (7th Cir. 1996), and Lashbrook v. Oerkfitz, 65 F.3d 1339 (7th

Cir. 1995). In each of these cases, we concluded that the plain-

tiffs could not identify a “specific ordinance, state law, con-

tract or understanding” that cabined the defendants’ discre-

tion. Moss, 473 F.3d at 700. The defendants here thus argue

that Cheli’s only “proof” of job security is language that we

14 No. 20-2033

have previously considered too permissive to support a pro-

tected property interest. However, they do so only after gloss-

ing over key factual distinctions in those cases.

In Flaningam, an unpublished opinion,2 we interpreted a

county code stating that “[i]n general, any action or attitude

which adversely affects job performance or the reputation of

the county government may be cause for disciplinary action.”

243 F. App’x at 173. We held this language did “not limit the

County’s discretion or create an assurance of continued em-

ployment.” Id. We noted that “permissive language” like that

in the county code “generally does not create an enforceable

property right.” Id. at 174.

The Master Agreement is readily distinguishable for two

reasons. First, it contains negligible permissive language. Un-

like the multiple permissive terms (“in general,” “any action

or attitude,” “affects job performance,” and “reputation of the

county”) in Flaningam, the Master Agreement “limit[s] the

[defendants’] discretion.” See id. at 173. For the reasons ex-

plained above, the single “may” in Section 8.1 is not some tal-

ismanic word that automatically eviscerates Section 8.1’s

commands. Second, while the county code in Flaningam per-

mitted discipline for “any action or attitude,” Section 8.1 enu-

merates specific “[g]rounds for discharge” that evince a clear

“limit [on] the [Board’s] discretion.” Id. at 173–74 (emphasis

added).

2 Circuit Rule 32.1(b) provides that “Orders, which are unsigned, are re-

leased in photocopied form, are not published in the Federal Reporter, and

are not treated as precedents.” Accordingly, Flaningam is merely persua-

sive authority, “and like any persuasive authority is entitled only to the

weight that the force of its reasoning commands.” United States v. Papia,

910 F.2d 1357, 1362 (7th Cir. 1990).

No. 20-2033 15

We turn next to Border. In Border, the plaintiff argued his

employee handbook providing for termination and discipline

“at any time, as may be appropriate, for conduct or perfor-

mance” created a protectable interest. 75 F.3d at 272. We ex-

plained that under the Illinois Supreme Court’s test in

Duldulao, employee handbooks only “create[] enforceable

contractual rights if the traditional requirements for contract

formation are present.” See id. at 273 (quoting Duldulao,

505 N.E.2d at 318). We then concluded that the handbook’s

language was too “weak” to qualify as an “employment con-

tract offer,” and the parties thus had not formed an implied

contract for job security. Id. at 274. Consequently, Border

could not rebut Illinois law’s presumption of at-will employ-

ment because he failed to identify an entitlement under state

law for due process purposes. See id. at 274.

Defendants’ reliance on Border fares even worse. Unlike

Border, Cheli does not have the threshold challenge of show-

ing the Master Agreement is “enforceable either as an ordi-

nance or as an implied contract” for job security with his em-

ployer. Id. at 274. Rather, the Master Agreement is an express

employment contract with “just cause” language “that gov-

erned his employment relationship with [the defendants],

and the instant case is distinguishable on that ground alone.”

See Lashbrook, 65 F.3d at 1346; see also McWhorter v. Realty

World-Star, Inc., 525 N.E.2d 1205, 1208 (Ill. App. Ct. 1988) (dis-

tinguishing between implied and express employment con-

tracts).

Furthermore, as in Flaningam, the Border handbook’s mul-

tiple permissive terms (“any time,” “as may be appropriate,”

and “for conduct or performance”) preserved the defendant’s

16 No. 20-2033

discretion. Id. at 272. In contrast, Section 8.1’s single invoca-

tion of the word “may” does not. Also, unlike the handbook,

Section 8.1 contains the explicit phrase “reasonable cause”—

a “hallmark of property” interests. See Logan, 455 U.S. at 430.

Of additional significance, neither the Master Agreement

nor the Manual contains any language disclaiming a property

interest. In Border, the presence of an explicit disclaimer that

the employee handbook created a property interest “utterly

dashed” any “incipient hope of a contractual promise.” Bor-

der, 75 F.3d at 274; see also Moss, 473 F.3d at 700–01 (holding

there was no “legitimate expectation of continued employ-

ment” because the policy manual at issue contained an “un-

ambiguous disclaimer” of any property interest, even if the

manual also stated that an employee “may be discharged for

cause”). Here, the district court and defendants focus on the

Manual’s language that “[u]nless otherwise specifically pro-

vided, District employment is at-will,” as evidence of a dis-

claimer. Far from an “unambiguous,” Moss, 473 F.3d at 700,

or “clear disclaimer,” Border, 75 F.3d at 275, however, this lan-

guage expressly preserves the possibility of a property interest

“otherwise specifically provided.” In fact, the Manual later

spells out an exception to at-will employment for employees

“granted a legitimate interest in continued employment,”

which is the precise issue now before us. That the Manual es-

tablishes at-will employment as the default is therefore irrel-

evant because Cheli enjoys a “legitimate interest in continued

employment” under Section 8.1 of the Master Agreement.

Finally, we turn to Lashbrook. In Lashbrook, an employee ar-

gued first that an “automatic renewal” provision in his em-

ployment contract provided a protectable property interest.

65 F.3d at 1344. We concluded, however, that the contract did

No. 20-2033 17

not “create a reasonable expectation of continued employ-

ment” because it elsewhere permitted Lashbrook or his em-

ployer to terminate the contract. Id. at 1346. Therefore, Lash-

brook had to point to some other promise of “a right to con-

tinued employment, even at the end of the Contract’s term.”

Id. Lashbrook asserted that his employee handbook (the per-

sonnel policy manual (“PPM”)) provided a promise of job se-

curity. He argued the PPM “overr[o]de[] the plain terms” of

his employment contract based on theories of contract modi-

fication and parol evidence. See id. We concluded that the

PPM was not an “enforceable modification,” so it “failed to

become part of the employment contract.” Id. at 1346–47. We

further explained in dicta that the PPM’s language was too

permissive under the Duldulao test in any event. We stated

that Lashbrook “could not reasonably believe that the state-

ment ‘Department Heads, with the approval of the Director,

may dismiss any employee for just cause’ would mean that he

could only be dismissed for just cause[,]” because the cited

PPM language was “permissive, not mandatory.” Id. at 1347

(emphasis added). We also rejected the notion that the PPM

was admissible as parol evidence. Id.

The instant case is clearly distinct from Lashbrook. As a pre-

liminary matter, while Lashbrook’s employment contract al-

lowed either Lashbrook or his employer to terminate with

sixty days’ notice, Section 8.1 by its plain terms allows termi-

nation only with “just cause.” Id. at 1346.

In addition, the plain terms of the employee manual in

Lashbrook did not apply the “just cause” provision to Lash-

brook. See id. at 1347 (reasoning the provision did not apply

to Lashbrook because he “was the Director” and a “provision

18 No. 20-2033

allowing a lower level employee (a Department Head) to dis-

miss other employees with Lashbrook’s approval could hardly

provide additional rights to Lashbrook himself”). By contrast,

the Master Agreement expressly covers “an employee,” like

Cheli, so it may “provide additional rights to [Cheli] himself.”

See id. Lashbrook, like Border, also involved a “prominent dis-

claimer” such that the PPM statements “could [not] have cre-

ated a reasonable belief in Lashbrook that an offer of employ-

ment was being made.” Id. Here, the “disclaimer” in the Man-

ual to which defendants point, as explained above, rather

than undermining any legitimate expectation of employment,

expressly preserved the possibility of a property interest.

Overall, defendants effectively urge us to interpret the en-

tire Master Agreement based on a single remark in Lashbrook

that if the PPM had been an enforceable modification of Lash-

brook’s employment contract, it was too permissive anyways.

We decline to do so. Viewed in the proper context, Lashbrook

does not advance the defendants’ case.

Finally, none of the above three cases featured a contract

structure that reinforced a promise of job security. “[W]hen

parties to the same contract use … different language to ad-

dress parallel issues … it is reasonable to infer that they intend

this language to mean different things.” Right Field Rooftops,

LLC v. Chi. Cubs Baseball Club, LLC, 870 F.3d 682, 690 (7th Cir.

2017) (some alterations in original) (quoting Taracorp, Inc. v.

NL Indus., Inc., 73 F.3d 738, 744 (7th Cir. 1996)); see also PQ

Corp. v. Lexington Ins. Co., 860 F.3d 1026, 1033 (7th Cir. 2017)

(“Illinois courts maintain a ‘strong presumption against pro-

visions that easily could have been included in [a] contract but

were not. A court will not add another term about which an

agreement is silent.’” (alteration in original) (quoting Klemp v.

No. 20-2033 19

Hergott Grp., Inc., 641 N.E.2d 957, 962 (Ill. App. Ct. 1994))).

Here, Section 8.5 of Article VII of the Master Agreement af-

firmatively provides the Board with the authority to termi-

nate employees covered by Section 8.5’s probationary period

“at its discretion.” A comparable term “easily could have been

included in [Section 8.1] but [was] not.” See PQ Corp., 860 F.3d

at 1033 (quoting Klemp, 641 N.E.2d at 962); see also Mitchell v.

Jewel Food Stores, 568 N.E.2d 827, 835 (Ill. 1990) (“Defendant’s

own manual demonstrates that defendant knows how to spe-

cifically reserve to itself the discretion it feels it needs.… If de-

fendant wants to reserve sole discretion to discharge any em-

ployee for any reason at any time, defendant could simply say

so.”). It is therefore “reasonable to infer” that the omission of

a comparable term in Section 8.1 implies the authority to ter-

minate employees under Section 8.1 is not at the Board’s dis-

cretion. See Right Field Rooftops, 870 F.3d at 690.

In sum, we find defendants’ reliance on the above cases

unavailing because of critical factual differences between

those cases and the one before us. Accordingly, we hold the

Master Agreement between Cheli and his employer contains

an express provision requiring the District terminate him only

for cause. Moreover, as discussed below, the remainder of the

Agreement’s provisions further buttress our interpretation of

Section 8.1 to allow defendants to fire Cheli only for cause.

B. Section 8.5

The Master Agreement’s reference to a probationary pe-

riod reinforces our view that the Master Agreement creates a

protectable property interest. “We have previously read con-

trasting employment-manual provisions regarding proba-

tionary and nonprobationary employees to create tenure

20 No. 20-2033

rights.” Cromwell, 713 F.3d at 365. We do so when a probation-

ary period is “coupled with other language independently

suggesting an expectation of continued employment.” Id.

“The Illinois Supreme Court reached the same result … where

an employment manual specifically reserved the employer’s

power to discharge probationary employees ‘for any reason

at the sole discretion of the employer,’ but also specified that

nonprobationary employees ‘shall not be suspended, dis-

charged or otherwise disciplined without just cause.’” Id. (ci-

tations omitted) (quoting Mitchell, 568 N.E.2d at 831, 835).

Section 8.5 provides for a 120-day probationary period

during which a new employee “will be an at-will employee”

and the “Board, at its discretion, may terminate the employ-

ment.” If new employees are specifically classified as “at-will”

employees here, then by implication employees serving more

than 120 days are not. Otherwise, Section 8.5’s language

would be superfluous. Cheli worked longer than 120 days, at

which point his property rights vested.

Cromwell v. City of Momence, cited by defendants, does not

undermine this conclusion because we do not rely solely on

Section 8.5’s probationary period to hold that the Master

Agreement vested Cheli with a protectable right. In Cromwell,

an employee pointed to a probationary period for new em-

ployees to argue that he had a constitutionally protected in-

terest. 713 F.3d at 364. The first relevant provision described a

probationary period for new employees during which they

could be fired for any reason. Id. The second provided that

any officer who violated state or federal law, any city rules or

regulations, or any order of the police chief may be disci-

plined, and set out the procedures by which discipline could

be implemented. Id. We rejected Cromwell’s argument that

No. 20-2033 21

“these two provisions” read together “imply that all non pro-

bationary officers have tenure and thus may be terminated

only for cause.” Id. Unlike Cromwell, the probationary period

here is not the keystone of our holding. See id. (noting “[t]he

mere presence of a probationary period does not by implica-

tion create an enforceable property right to continued em-

ployment for nonprobationary employees”). Far from “too

much of a stretch,” Section 8.5 of the Master Agreement, when

“coupled with other language [in Section 8.1] independently

suggesting an expectation of continued employment,” gives

rise to an “affirmative, clear promise” of a property interest.

Id. at 364, 365.

Any other reading of Section 8.5 would undermine Arti-

cle VII. The district court and defendants would have us read

Section 8.1 as providing no restrictions on the District’s ability

to remove its employees (despite the “reasonable cause” lan-

guage), yet simultaneously interpret Section 8.5’s clear decla-

ration that a subset of employees is “at will” as meaningless

because, in its view, all employees are at-will. Only through

linguistic gymnastics could we harmonize these two read-

ings. The sensible reading is this: Under Section 8.5, new em-

ployees in their first 120 days of employment are at-will em-

ployees who the District may terminate for any reason. Under

Section 8.1, employees who have worked longer than 120

days are no longer at-will employees and the District may ter-

minate them only for “reasonable cause.” Thus, Section 8.5

supports our holding that Cheli had a protected property in-

terest.

C. Sections 8.2–8.4

Finally, Sections 8.2–8.4 also bolster our view that the Mas-

ter Agreement gives rise to a protected property interest. We

22 No. 20-2033

stated in Border: “Illinois courts have recognized that the lack

of termination and grievance procedures weighs strongly

against a finding of for cause employment. But this does not

mean that the presence of such procedures indicates for cause

employment, especially in the face of clear ‘no employment

contract’ language.” 75 F.3d at 275 (citation omitted) (citing

Ahlgren v. Blue Goose Supermarket, Inc., 639 N.E.2d 922, 927 (Ill.

App. Ct. 1994)). However, “articulated procedures are a fun-

damental and necessary part of an employment contract

which provides for an employee’s discharge or dismissal only

upon just cause.” Ahlgren, 639 N.E.2d at 927. Therefore, the

presence of such procedures, as in Sections 8.2–8.4, in con-

junction with other provisions in the Master Agreement, can

still support the existence of for-cause employment, espe-

cially in the absence of a “no employment” disclaimer. See

Border, 75 F.3d at 275.

The Illinois Supreme Court addressed grievance proce-

dures in Griggsville-Perry Community Unit School District No. 4

v. Illinois Educational Labor Relations Board, 984 N.E.2d 440 (Ill.

2013). In Griggsville, the court approved an arbitrator’s inter-

pretation of a collective bargaining agreement finding the em-

ployees were for-cause employees. Id. at 448. Notably, “a just-

cause standard for dismissal was expressly discussed during

negotiations over the collective-bargaining agreement but

was not adopted,” yet the arbitrator concluded that a provi-

sion outlining disciplinary procedures would be “rendered

meaningless” if the plaintiffs were at-will employees. Id. at

446. The provision at issue required that the school district

hold a meeting for any employee disciplined and provide

“reasonable prior written notice of the reasons for such a

meeting and shall be entitled to have a personal representa-

tive at said meeting.” Id. at 444–45. The Illinois Supreme Court

No. 20-2033 23

held “the arbitrator’s decision drew its essence from the col-

lective-bargaining agreement.” Id. at 448.

In this case, the Master Agreement contains specific provi-

sions providing for disciplinary proceedings and requiring

the defendants to provide a “written explanation” for their

decisions. Sections 8.2–8.4 flesh out what the District must af-

ford employees it disciplines and discharges: “[a] confer-

ence,” “the right to a representative,” and “[a] written expla-

nation.” While Sections 8.2–8.4 may not alone give Cheli a

protected property interest, as with Section 8.5, they are com-

pelling support for the existence of a property interest, espe-

cially considering that the Master Agreement and the Manual

do not elsewhere include a “no employment contract” dis-

claimer that applies to Cheli. See Border, 75 F.3d at 275.

Consistent with the arbitrator and Illinois Supreme

Court’s decision in Griggsville-Perry, if Cheli were an at-will

employee it would render Sections 8.2–8.4 “meaningless.” See

id. If all of defendants’ employees are at will, then defendants

would never need a reason to discharge them and thus never

be required to provide its employees with the procedures laid

out in the Master Agreement. This interpretation is belied by

the fact that the Board applied those procedures to Cheli in

practice, determining that Cheli was incompetent even

though (according to its argument before this Court) such a

finding was never necessary. Furthermore, the Master Agree-

ment includes quintessential “just cause” language in Sec-

tion 8.1 (“reasonable cause”) in addition to the disciplinary

procedures in Sections 8.2–8.4. The provisions here therefore

create an even stronger expectation of job security than in

Griggsville-Perry because the collective bargaining agreement

24 No. 20-2033

there did not contain “just cause” language and, in fact, the

parties expressly rejected such language during negotiations.

Defendants seek to downplay the logical force of

Griggsville-Perry because it concerned the “extremely limited”

review of an arbitrator’s decision, id. at 498, and because the

Master Agreement here does not contain an arbitration provi-

sion. Be that as it may, the Illinois Supreme Court’s view that

the arbitrator did not simply adopt his “own brand of … jus-

tice,” id. at 498, reassures us of the propriety of interpreting

Sections 8.2–8.4 to support our finding of for-cause employ-

ment.

Having determined that the Master Agreement created a

protected property interest in Cheli’s employment, we leave

to the district court to address the remaining elements of

Cheli’s procedural due process claim.

III. Conclusion

If we accepted defendants’ construction of the Master

Agreement, then defendants could conceivably always cir-

cumvent its bargained-for strictures for the purposes of due

process. If we accept that defendants need not find “reasona-

ble cause” under Section 8.1, then the protections of Sec-

tions 8.2–8.4 would never attach because defendants would

not have to explain or provide any process for terminating at-

will employees. Conveniently by their reading, this would en-

compass all of their employees. To make any sense of the Mas-

ter Agreement, we would need to go even further and read

Section 8.5—declaring some employees as at-will employ-

ees—as somehow applying to all employees, nullifying the

rest of Article VII. To prevent this illogical result, we REVERSE

No. 20-2033 25

the judgment of the district court and REMAND to the court for

further proceedings consistent with this opinion.