Redd v. Nolan

In the

United States Court of Appeals

For the Seventh Circuit

No. 10-2680

S AMONE R EDD ,

Plaintiff-Appellant,

v.

R OSEMARIE N OLAN, et al.,

Defendants-Appellees.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 1:08-cv-00343—Morton Denlow, Magistrate Judge.

A RGUED S EPTEMBER 7, 2011—D ECIDED N OVEMBER 29, 2011

Before P OSNER, F LAUM, and H AMILTON, Circuit Judges.

H AMILTON, Circuit Judge. Samone Redd’s probationary

employment with the Cook County Department of Cor-

rections ended with her resignation on October 31, 2007.

Redd had been a witness in a criminal investigation

conducted by Detective John Dougherty of the City of

Chicago Police Department. She has sued Dougherty,

alleging that when she refused to lie to further the ends

of that investigation, he tortiously interfered with her

2 No. 10-2680

County employment. She has also sued the County

Sheriff and Sheriff’s Department Director of Personnel

Rosemarie Nolan (collectively, the “County”), claiming

First Amendment retaliation, retaliatory discharge, and

a violation of her procedural due process rights.1 Her

claims against Detective Dougherty were dismissed

under Federal Rule of Civil Procedure 12(b)(6) for

failure to state a claim in a ruling by Judge Ruben

Castillo.2 The claims that survived dismissal moved

forward before Magistrate Judge Morton Denlow pursu-

ant to the parties’ consent. Judge Denlow granted the

County’s motion for summary judgment on all of Redd’s

remaining claims. Redd appeals both of these rulings.

We affirm.

1

Redd brought her retaliatory discharge claim only against

the Sheriff, as her employer.

2

Judge Castillo also dismissed all of Redd’s claims against

“unknown defendants,” as well as a substantive due process

claim against Director Nolan, claims of unspecified violations

of her “First, Fourth, Sixth and/or Fourteenth Amendment”

rights against Detective Dougherty and Assistant State’s

Attorney Adam Weber, and a claim of intentional infliction

of emotional distress against all defendants. Redd does not

appeal these rulings. She also does not appeal Judge Castillo’s

dismissal of her retaliatory discharge claim as to Director

Nolan or her claim of intentional interference with a business

relationship as to ASA Weber.

No. 10-2680 3

I. Intentional Interference with a Business Relationship

The district court dismissed the claim against Detective

Dougherty for intentional interference with a business

relationship. We review the dismissal under Rule 12(b)(6)

de novo, accepting well-pled facts as true and drawing

any reasonable inferences in Redd’s favor. See Reynolds

v. CB Sports Bar, Inc., 623 F.3d 1143, 1146 (7th Cir. 2010).

Additional background facts became available when

the case progressed to summary judgment, but like the

district court, we limit our review to the factual allega-

tions Redd included in her first complaint.3

Redd began training to be a Cook County correctional

officer on November 13, 2006, receiving her final evalua-

tion from the Sheriff’s Institute for Law Enforcement

Education and Training on February 2, 2007. She then

began work as a correctional officer for the Cook County

Department of Corrections. All correctional officers

must satisfy a one-year probationary period; Redd’s

probation was to end on November 13, 2007.

On May 29, 2007, Redd saw a man and a woman

arguing outside of a Chicago residence. About two days

later, she was contacted by Detective Dougherty, who

asked her to give a statement about what she had seen on

May 29th. She told him at that time that she had not

3

Over the course of this litigation, Redd filed three com-

plaints. Her tortious interference with a business relationship

claim was dismissed based on the allegations in the first of

her complaints, filed January 15, 2008, so that is the one

we consider on appeal.

4 No. 10-2680

witnessed a battery, but she did not sign an official state-

ment. Redd alleges that Detective Dougherty, ap-

parently not satisfied with that statement, repeatedly

called her, attempting to intimidate and harass her.

On July 5, 2007, Dougherty called Redd at 3:00 a.m.,

demanding that she immediately give a statement in

person. Although Redd refused, Dougherty insisted

that she give a statement and cooperate. Hours later

Dougherty arrived at Redd’s door with a subpoena

to appear and testify before a grand jury on July 6 and

July 9, 2007.

On July 6th, Redd was on her night-shift lunch break at

1:45 a.m. when she received a call from Detective

Dougherty advising her that he and Assistant State’s

Attorney Weber were coming to the jail to obtain her

statement. When they arrived, however, DOC External

Operations Officers refused to let them enter the jail to

see Redd.

At 9:00 a.m. on July 6th, Redd appeared for the

grand jury proceedings pursuant to her subpoena.

ASA Weber tried to get Redd to change her statement

by intimidation and coercion, she alleges, falsely

accusing her of making inconsistent statements. Redd

refused to lie and did not testify before the grand jury.

This scene was repeated on July 9th, except that

Detective Dougherty was also present when ASA

Weber attempted to bully Redd into changing her state-

ment.

ASA Weber later filed a complaint against Redd with

the County Sheriff’s Department accusing her of failing

No. 10-2680 5

“to cooperate in an ongoing criminal investigation” and

of “providing the State’s Attorney’s Office with false

statements.” Redd alleged in conclusory terms that De-

tective Dougherty conspired with ASA Weber to

interfere with her employment relationship. As a result

of ASA Weber’s accusations, Redd alleges, Sheriff’s

Department Director of Personnel Rosemarie Nolan

“terminated and/or constructively discharged” Redd from

her job as a DOC correctional officer on October 31, 2007.4

Detective Dougherty moved to dismiss Redd’s claim

of tortious interference with a business relationship

under Rule 12(b)(6) for failure to state a claim. To defeat

Detective Dougherty’s motion, Redd had to do more

than allege the elements of her claim. Her complaint

“must actually suggest that [she] has a right to relief, by

providing allegations that raise a right to relief above

the speculative level.” Windy City Metal Fabricators &

Supply, Inc. v. CIT Tech. Fin. Servs., 536 F.3d 663, 668

(7th Cir. 2008) (emphasis in original), quoting Tamayo v.

Blagojevich, 526 F.3d 1074, 1084 (7th Cir. 2008). Her com-

plaint was required to provide at least “enough fact to

raise a reasonable expectation that discovery will reveal

evidence” supporting her allegations. Bell Atlantic Corp. v.

Twombly, 550 U.S. 544, 556 (2007). But this requirement

4

For the sake of clarity, we note again that Redd initially

brought claims of tortious interference with a business rela-

tionship under Illinois law against both Weber and

Dougherty. The court dismissed Redd’s claim against Weber

on sovereign immunity grounds. Redd has not appealed

that decision.

6 No. 10-2680

does not mean that the plaintiff was required to show

that she would probably prevail. A well-pleaded com-

plaint “may proceed even if it strikes a savvy judge

that actual proof of those facts is improbable, and that

a recovery is very remote and unlikely.” Id. (internal

quotation omitted).

To establish the tort of intentional interference with a

business relationship under Illinois law, a plaintiff must

show (1) a reasonable expectation of continued employ-

ment; (2) knowledge of the business relationship by the

defendant; (3) intentional interference; and (4) damages.

See Callis, Papa, Jackstadt & Halloran, P.C. v. Norfolk and

Western Ry. Co, 748 N.E.2d 153, 161 (Ill. 2001); Labate v.

Data Forms, Inc., 682 N.E.2d 91, 94 (Ill. App. 1997).

The district court found that Redd’s claim against

Dougherty failed on the third element because Redd

alleged that ASA Weber, and not Detective Dougherty,

filed the complaint against her with the Sheriff’s Depart-

ment, and because nothing else in Redd’s allegations

suggested that Detective Dougherty was involved with

or participated in ASA Weber’s complaint. We agree

with this reasoning.

Redd’s allegations certainly suggest that Detective

Dougherty did his best to pressure Redd into telling

him what he and ASA Weber wanted to hear. But Redd

also alleged that ASA Weber, and only ASA Weber,

raised a complaint with her employer. Redd has failed to

allege a viable claim against Detective Dougherty under

the post-Twombly standards of Rule 8. She attempts to

draw Detective Dougherty into the mix by claiming that

No. 10-2680 7

he and ASA Weber “individually and/or in a conspiracy,

intentionally interfered with [Redd’s employment] by

inducing the Cook County Department of Corrections

to discharge Plaintiff,” but her attempt falls short. Her

assertion of a conspiracy is an unsupported legal conclu-

sion that we are not bound to accept as true. See, e.g.,

Kolbe & Kolbe Health & Welfare Benefit Plan v. Medical

College of Wisconsin, Inc., 657 F.3d 496, 502 (7th Cir.

2011). The complaint includes not a whiff of a conspirato-

rial agreement or any improper complicity between

Weber and Dougherty to support the conclusory allega-

tion. Taking Redd’s allegations as a whole, we cannot

reasonably infer that Detective Dougherty was involved

in ASA Weber’s complaint or that he otherwise inten-

tionally interfered with Redd’s employment. We there-

fore affirm the district court’s dismissal of the claim

against Detective Dougherty.

II. Retaliation Claims

The County sought summary judgment on Redd’s

claims of First Amendment retaliation and state law

retaliatory discharge. The Magistrate Judge granted the

County’s motion on these two claims, and Redd appeals.

We review the court’s grant of summary judgment de

novo, and we view the designated evidence and draw

all reasonable inferences therefrom in the light rea-

sonably most favorable to Redd as the non-moving

party. See Poer v. Astrue, 606 F.3d 433, 438-39 (7th Cir.

2010). Summary judgment is appropriate only when

8 No. 10-2680

the pleadings, discovery materials, disclosures, and

affidavits demonstrate that there is no genuine issue as

to any material fact and that the moving parties are

entitled to judgment as a matter of law. Fed. R. Civ.

P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23

(1986).

The specifics of ASA Weber’s complaint and the

County’s ensuing investigation were not part of Redd’s

complaint allegations and thus could not be considered

by the court in deciding Dougherty’s and the City’s

motion to dismiss, but these additional facts could and

did come into play with the County’s summary judg-

ment motion. On May 29, 2007, Redd attended a

barbeque at which she witnessed a verbal altercation

between her friend Tammie Watkins and Raphael Taylor.

Watkins later accused Taylor of striking her in the face

with a beer bottle. Chicago Police sought corroboration

of Watkins’ story from Redd, whom they considered a

“circumstantial witness” to the crime.

Chicago Police Detective Brian Johnson investigated

the Watkins battery alongside Detective Dougherty.

Detective Johnson testified that on June 7, 2007, Redd

told him that she had met with Taylor after the

incident, and that Taylor told Redd that he was sorry

and he “didn’t mean to do that to Tammie.” Redd

did not see or sign the report that Johnson created mem-

orializing her supposed statement. Detectives Johnson

and Dougherty began looking for Taylor, and Redd

rode along with them to help find him, giving Johnson

and Dougherty possible addresses and a license num-

No. 10-2680 9

ber to assist them. Detective Johnson testified that up

to that point, Redd was cooperative.

But after Taylor was arrested on July 4, 2007, Detec-

tive Johnson believed that Redd became difficult and

stopped cooperating. First, she refused to go to the police

station to view a line-up. Then, on July 5th, Detective

Johnson and Assistant State’s Attorney Kevin Nolan

attempted to speak with Redd at the Cook County Jail

during her shift, but they were not allowed to enter.

(Redd’s supervisor later explained that External Opera-

tions and the Administrative Duty Officer determine

who is and who is not allowed to enter the jail, and that

Redd was not involved in the decision to exclude Detec-

tive Johnson and ASA Nolan.) Redd was subpoenaed

to appear before a grand jury on July 6th and 9th. On

July 6th, Redd called the phone number on the subpoena

because she was confused about the date she should

appear. She spoke to ASA Weber, who asked her when

she would like to appear. Redd stated she would come

right then because she was at work. She arrived in ASA

Weber’s office, but Weber decided against putting her

on the witness stand. Redd returned to Weber’s office

again on July 9th, but Weber again declined to call her

to testify.

The Sheriff’s Office of Professional Review received a

complaint from ASA Weber alleging that Redd had

purposely failed to cooperate in a criminal investigation

of the alleged aggravated battery committed against

Watkins. The Sheriff’s Department’s General Orders

controlled how internal investigations were handled.

10 No. 10-2680

Section (III), D, 2 of General Order 4.1 detailed the author-

ity and responsibility of the Internal Investigations Divi-

sion in handling complaints concerning correctional

department officers:

Disciplinary action in connection with “sustained”

complaints is initially recommended by the assigned

Internal Investigations Investigator. The Chief In-

vestigator will review the investigator’s findings and

recommendation(s), then submits the investigation

for Command Channel Review. Command Channel

Review consists of the Inspector General, Under-

sheriff, Executive Director, and in cases where there

is recommendation for termination, the Sheriff.

Detective Servando Velez was assigned to conduct an

administrative investigation of ASA Weber’s complaint.

He interviewed Weber, Detective Johnson, ASA Nolan,

and Redd. Redd denied that Raphael Taylor had

admitted to her that he hit Tammie Watkins. Instead,

Redd told Detective Velez that she had spoken not to

Taylor but to Taylor’s girlfriend. She also told Detective

Velez that she had been unable to come to police head-

quarters to view a line-up on July 5th because her child

had been at home asleep. When he was interviewed,

Detective Johnson told Detective Velez that Redd had

become “difficult” and did not want to cooperate in the

investigation after Taylor was arrested. She had told

Detective Johnson that she did not want to be involved,

and she refused to view a line-up because her super-

visor had told her not to become involved. When Redd

failed to meet with the police, the decision was made

No. 10-2680 11

to subpoena her to testify before the grand jury. Detec-

tive Johnson told Detective Velez that ASA Weber

decided not to call Redd to testify before the grand jury

because of her inconsistent statements.

In conducting his investigation into ASA Weber’s

complaint, Detective Velez did not request the police

detectives’ reports or progress notes as part of his in-

vestigation. He did not interview External Operations

or Redd’s supervisor at the Cook County Jail. When

asked whether he believed the information provided to

him by the police detectives, Velez responded: “I believe

a police officer is going to be truthful in his statement.”

He also stated that he “absolutely” believed the Assistant

State’s Attorneys were being truthful with him.

Detective Velez completed his investigation on

October 4, 2007, ultimately sustaining the following

charges against Redd:

(1) that she “failed to cooperate with Chicago Police

Detectives and Assistant State’s Attorneys investi-

gating an Aggravated Battery on 06 July 2007” in

violation of General Order 3.8 (III) B, 4;

(2) that she contradicted her prior statements to de-

tectives and changed the facts after three interviews

in violation of General Order 3.8 (III) B, 4;

(3) that she “provided contradictory statements to

both Detectives and ASAs assigned to investigate

an Aggravated Battery” in violation of General

Order 3.8 (III) B, 6;

12 No. 10-2680

(4) that she “refused to speak with Det. Dougherty

and ASA Nolan . . . and impeded their investigation”

in violation of General Order 3.8 (III) B, 6; and

(5) that she “reported three hours late to a Grand Jury

subpoena after being given appropriate notice

and proceeded to give conflicting statements” in

violation of General Order 3.8 (III) B, 6.

General Order 3.8 (III) B, 4 required employees to “respect

and protect the right of the public to be safeguarded

from criminal activity.” General Order 3.8 (III) B, 6 re-

quired employees to “respect the importance of agencies

within the criminal justice system and work to improve

coordination within each segment.” Based on the out-

come of Velez’s investigation, Henry Barsch, the

Assistant Executive Director of the Office of Professional

Review, recommended that Redd be terminated.

On October 31, 2007, Redd met with defendant

Rosemarie Nolan, the Director of Personnel of the

Sheriff’s Department. Nolan advised Redd of the

charges against her and the General Orders she was

found to have violated. She also told Redd that if she did

not resign, she would be discharged for misconduct.

Redd chose to resign. On November 6th, an Executive

Director of the DOC concurred with OPR’s findings and

recommendation of termination. On November 9th, an

OPR Executive Director concurred with OPR’s findings

and recommendation of termination. The Undersheriff

concurred on November 16, and on November 21st,

the Sheriff concurred with OPR’s findings and recom-

mendation of termination. Director Nolan testified that

No. 10-2680 13

she lacks the authority to disagree with or reverse a

discharge decision.

Redd contends that she was discharged in violation

of her First Amendment rights in retaliation for refusing

to commit perjury. To establish a prima facie case of

First Amendment retaliation, an employee must show

that: (1) the employee’s speech was constitutionally pro-

tected; (2) the employee has suffered a deprivation

likely to deter free speech; and (3) the employee’s speech

was a motivating factor in the employer’s decision. See

Greene v. Doruff, ___ F.3d ___, ___, 2011 WL 4839162, at *2

(7th Cir. Oct. 11, 2011), following Spiegla v. Hull, 371

F.3d 928, 941-43 (7th Cir. 2004); Valentino v. Village of

South Chicago Heights, 575 F.3d 664, 670 (7th Cir. 2009).

Redd also claims retaliatory discharge under Illinois

law, which is a narrow exception to the rule that an

employer may fire an at-will employee for any reason or

no reason. To establish a claim of retaliatory discharge,

an employee must establish that she was (1) discharged;

(2) in retaliation for her activities; and (3) the discharge

violated a clear mandate of public policy. See Blount v.

Stroud, 904 N.E.2d 1, 9 (Ill. 2009). If Redd had been dis-

charged for refusing to commit perjury, that would be

a recognized violation of public policy under Illinois law.

See id.

We consider Redd’s retaliation claims together because

each failed on summary judgment for the same reason:

Redd lacks evidence from which a reasonable jury

could infer that she was asked to resign in retaliation

for refusing to commit perjury before the grand jury.

14 No. 10-2680

Redd’s argument misses the mark. She contends that

summary judgment was not appropriate because only

a jury could determine whether the County’s stated

reason for her termination — violations of department

rules and regulations — was credible. In support of

her contention, she points only to Detective Velez’s state-

ments that, in conducting his investigation, he believed

“a police officer [would] be truthful in his statement”

and that he “absolutely” believed the Assistant State’s

Attorneys were being truthful with him. For these

reasons, Redd contends that Velez was “neglectful” of

the possibility that those officers and ASAs might lie (or

be honestly mistaken). Without significantly more

evidence to undermine the honesty of Velez’s account,

however, Redd has at most an argument that Velez

was gullible or naive. Employment actions based on

gullible or naive reasoning or otherwise bad judgment

are not illegal for that reason.

What is missing here is any evidence from which a

reasonable jury might conclude that Detective Velez’s

investigation or conclusions were in retaliation for

Redd’s asserted refusal to lie to further the prosecution

of Raphael Taylor in the Watkins battery. In other

words, even if Velez’s conclusions were wrong, that

would not support an inference that he or other DOC

officials intended to retaliate against Redd for exer-

cising her rights under the First Amendment and

Illinois law.

Even if we were to take a speculative leap and

assume that Detective Velez himself harbored a retali-

No. 10-2680 15

atory motive, Redd has another hurdle to overcome.

Detective Velez did not participate in the decision

to terminate Redd’s employment — and, other than

delivering the news, neither did Director Nolan. Henry

Barsch, the Assistant Executive Director of the Office

of Professional Review, was the one who reviewed the

results of Detective Velez’s investigation and recom-

mended that Redd be separated from her employment.

Even if Velez’s investigation could somehow be catego-

rized as retaliatory, Redd does not argue that Barsch

was Velez’s “cat’s paw,” and nothing in this record sug-

gests that any retaliatory motive trickled up to Barsch,

the decision-maker. See, e.g., Staub v. Proctor Hospital,

131 S.Ct. 1186, 1192 (2011) (under “cat’s paw” theory of

liability, employer will be liable for discrimination

where an adverse action taken by a decision-maker is

“the intended consequence” of a non-decision-maker’s

“discriminatory conduct”). In short, there is no evi-

dence that would support a reasonable finding of

illegal retaliation in this summary judgment record.

III. Procedural Due Process

Finally, we turn to Redd’s claim that the County defen-

dants violated her right to procedural due process. The

Magistrate Judge also granted the County’s motion for

summary judgment on this claim, and here again we

review the court’s grant of summary judgment de

novo, viewing all evidence and drawing all reasonable

inferences therefrom in the light reasonably most

favorable to Redd as the non-moving party. See Poer,

606 F.3d at 438-39.

16 No. 10-2680

A procedural due process violation occurs when

(1) conduct by someone acting under the color of state

law; (2) deprives the plaintiff of a protected property

interest; (3) without due process of law. See Germano

v. Winnebago County, 403 F.3d 926, 927 (7th Cir. 2005).

Whether Redd had a property interest in continued

employment depends on state law. See Board of Regents

v. Roth, 408 U.S. 564, 577 (1972); Germano, 403 F.3d at 927.

To show a legitimate expectation of continued employ-

ment under Illinois law that could support a due process

claim, Redd must point to a state law, an ordinance, a

contract, or some other understanding limiting the

Sheriff’s ability to discharge her. See Krecek v. Board of

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

(Ill. App. 1995).

Redd was still within her probationary period when

her employment ended, so this determination seems

deceptively easy. It is well-settled that probationary

public employees do not possess a property interested in

continued employment and thus have no right to proce-

dural due process before their employment may be termi-

nated. See Williams v. Seniff, 342 F.3d 774, 787 (7th Cir.

2004) (Indiana law established a term of one year of

probation for county police officers; officer fired within

probationary period had no protected interest in con-

tinued employment); Omosegbon v. Wells, 335 F.3d 668, 674-

75 (7th Cir. 2003) (no protected interest in reappointment

to a “probationary” Indiana state university teaching

position); Trejo v. Shoben, 319 F.3d 878, 889 (7th Cir.

2003) (same, in Illinois); Common v. Williams, 859 F.2d

467, 470-71 (7th Cir. 1988) (Illinois corrections officer fired

No. 10-2680 17

within probationary period had no protected interest

in continued employment). The Illinois legislature has

even codified this principle specifically for county cor-

rections officers: “All appointees shall serve a proba-

tionary period of 12 months and during that period

may be discharged at the will of the Sheriff.” 55 ILCS § 5/3-

7008.

But the issue turns out not to be quite so simple, at

least with regard to probationary employees of the Cook

County Department of Corrections. Despite the quoted

statutory language, “a municipality can provide greater

protection for its employees if it sees fit to do so by en-

acting rules and regulations.” Lewis v. Hayes, 505 N.E.2d

408, 411 (Ill. App. 1987). For such a rule or regulation to be

effective, however, it must be a “clear policy statement.”

Faustrum v. Board of Fire and Police Comm’rs of the Village

of Wauconda, 608 N.E.2d 640, 643 (Ill. App. 1993). When

Redd finished her training and started working as a

correctional officer, she signed a document as part of

her employment paperwork. By its terms, the document

stated Redd’s “terms of employment.” By signing the

document, she confirmed that she would abide by the

DOC’s General Orders and Procedures. She also con-

firmed that she understood “that during my first year

as a Correctional Officer, I am on probation and can be

terminated for cause.” (Emphasis added.) The question

before us is whether this is a “clear policy statement”

sufficient to alter the ordinary at-will terms of Redd’s

probationary employment.

Redd argues that the “termination for cause” language

in her employment agreement meant that the DOC had

18 No. 10-2680

altered the meaning of probationary employment so

that she could be terminated only for cause, so that she

had a protected interest in continued employment with

the DOC. Redd finds support for this position in Lewis

v. Hayes, in which a panel of the Illinois Appellate

Court accepted a similar argument and held that a proba-

tionary police officer had a property interest in his job

because the local government had adopted rules saying

that a probationary employee could be terminated for

cause: “If a probationary officer could be terminated

either with cause or without, the ‘with cause’ language

would have no meaning whatsoever, and we can not

assume that the Village would draft meaningless

language and insert it into its Commission’s Rules.”

505 N.E.2d at 411.

We are not persuaded that the reasoning of Lewis is

sufficient to satisfy the later “clear policy statement”

requirement that has emerged under Illinois law as the

condition of overcoming the clear statutory language

providing that probationary employees may be fired

without cause. First, it simply is not “meaningless” to

tell an employee that she may be fired for cause or to

specify some of the particular causes, even if the

employer does not intend to limit its discretion to fire

an employee without good cause (meaning with-

out judicial review). It may be useful for both em-

ployer and employee for the employer to communicate

expectations for performance, and to remind the em-

ployee of the consequences of poor performance. The

legal nuances of providing such a warning need not be

spelled out in detail, particularly where the employ-

No. 10-2680 19

ment relationship is governed by statute, as it is here

in the case of probationary corrections employees.

Even more to the point, however, we do not see how

we could reconcile the promise that Lewis found to be

only implied (to fire only for good cause) with the re-

quirement of a clear policy statement to overcome the

statute providing for truly probationary employment. See

Krecek, 646 N.E.2d at 1319; Faustrum, 608 N.E.2d at 643

(allowing termination of probationary police officer

without notice or hearing). The clear statement require-

ment can be traced back at least to Romanik v. Board of Fire

and Police Comm’rs of East St. Louis, 338 N.E.2d 397 (Ill.

1975), in which the Illinois Supreme Court drew a sharp

line between regular police officers with for-cause pro-

tection and probationary officers who had not yet

proven their abilities on the job. There the state’s highest

court refused to read a statute requiring pre-termination

procedures as applying to probationary officers in the

absence of specific language requiring application to

them. Id. at 399. The clear statement requirement simply

is not satisfied by an inference that lawyers and judges

might draw from at best ambiguous and incomplete

language.

Accordingly, in similar cases involving state and local

government employees in Illinois, we have found that

there was no clear statement overcoming statutory pro-

visions for truly probationary employment. See, e.g.,

Border v. City of Crystal Lake, 75 F.3d 270, 275 (7th Cir. 1996)

(affirming summary judgment for employer and finding no

property interest where employer specified some grounds

20 No. 10-2680

for termination but did not clearly indicate that those

were only grounds for termination); Lashbrook v. Oerkfitz,

65 F.3d 1339, 1347-48 (7th Cir. 1995) (affirming summary

judgment for employer and finding no property interest

where contract and policies did not say that employee’s

contract could be terminated only for good cause); see

also Moss v. Martin, 473 F.3d 694, 701 (7th Cir. 2007)

(affirming summary judgment for employer; permissive

language in manual that employee “may be discharged

for cause” did not imply promise that discharge could be

only for good cause); Boulay v. Impell Corp., 939 F.2d 480,

482-83 (7th Cir. 1991) (affirming summary judgment for

employer; permissive language in employee handbook

did not guarantee either progressive discipline or “just

cause” for dismissal).

The language in the employment agreement cannot be

read in a vacuum. Properly read in context with the

statute and other DOC rules and regulations concerning

DOC employee status and discipline, the single line in

Redd’s employment agreement stating that she could

“be terminated for cause” is not a sufficiently clear state-

ment that she could be fired only for cause to give Redd

a protected property interest in her probationary em-

ployment.

The DOC General Orders and Procedures, which Redd

acknowledged were also binding on her employment,

stated: “All probationary employees (person employed

by the Department less than 12 months) may be sum-

marily terminated by the Sheriff or his designee.” DOC

General Order 3.2A. They also stated:

No. 10-2680 21

All probationary correctional officers serve a proba-

tionary period of (1) year, from the date of appoint-

ment. After successful completion of the proba-

tionary period, officers are granted full merit status. . . .

Failure to meet minimum standards of performance

may be basis for termination of a probationary em-

ployee at any time during the probationary period.

If it becomes apparent that the probationary

officer’s conduct, character or standards of perfor-

mance do not meet Sheriff’s Office standards for

satisfactory service, the probationary officer may be

removed.

DOC General Order 3.5. When the relevant documents

are read together, we find no clear statement that the

DOC intended to alter the terms of Redd’s employment

by stating in her employment agreement that she could

be terminated for cause. It is not difficult to reconcile

the General Orders and the “termination for cause”

language in Redd’s employment agreement: although

Redd certainly could have been terminated for cause,

she also could have been terminated without cause.

In either case, the Sheriff retained the right to terminate

Redd “summarily” so long as she was within her proba-

tionary period.

To support her claim to a protected property interest

in her probationary job, Redd also relies on procedural

provisions of department policies. Redd points to DOC

General Order 4.1, which described how complaints,

internal investigations, and disciplinary actions within

the department should be conducted. She contends that

22 No. 10-2680

this General Order “specifie[d]” that probationary em-

ployees accused of misconduct had the “right” to an

investigation before they were disciplined. The language

of General Order 4.1 does not support her contention.

More fundamental, even if Redd could show a promise

that certain procedures would be available to her before

termination, it is well established that such procedural

protections under state law do not provide the sub-

stantive restrictions on the employer’s discretion that

would be needed to establish a federally protected prop-

erty interest in continued employment. See, e.g., Border,

75 F.3d at 275 (presence of grievance procedures in

employee handbook did not indicate that plaintiff’s em-

ployment could be terminated only “for cause”); Campbell

v. City of Champaign, 940 F.2d 1111, 1113 (7th Cir. 1991);

Lim v. Central DuPage Hospital, 871 F.2d 644, 648 (7th Cir.

1989); Schultz v. Baumgart, 738 F.2d 231, 236 (7th Cir. 1984)

(employee’s federal due process claim did not depend

on whether local government employer complied with

every detail of state law’s procedural requirements).5

5

Several Illinois state cases seem to conclude that state law

requirements for procedural protections of employees are

sufficient to create a property interest protected by the federal

Due Process Clause. See, e.g., Krecek, 646 N.E.2d at 1319;

Faustrum, 608 N.E.2d at 641-43; Lewis, 505 N.E.2d at 411.

Such procedural requirements are often enforceable as a

matter of state law. E.g., Fernandes v. Nolen, 592 N.E.2d 1151,

1153 (Ill. App. 1992) (probationary state police officer was

entitled to pre-termination hearing where agency rules

(continued...)

No. 10-2680 23

To show a protected property interest in her proba-

tionary employment, Redd also relies on Director

Nolan’s deposition. Nolan testified that probationary

employees could be terminated only for “just cause” and

that the Sheriff could terminate a probationary

employee if there was a “reason for discharge.” Nolan’s

testimony was confused and inconsistent. She also

testified that her understanding of “fired for just cause”

meant that an employee could be discharged for any

reason at the discretion of the employer. Although we

must resolve that confusion and inconsistency in Redd’s

favor on summary judgment, it does not help her. No

matter what Nolan believed, she was not able to alter

unilaterally the terms of Redd’s employment. Thus, what

Nolan may or may not have understood in that regard

was not relevant to Redd’s actual legal status. See

Common, 859 F.2d at 471-72 (DOC executive director

lacked the authority to vary the terms of an employee’s

probationary employment).

Accordingly, we conclude that the sentence in Redd’s

employment agreement saying that she could be termi-

nated for cause was not a sufficiently “clear policy state-

ment” to override the mandate of 55 ILCS § 5/3-7008

that county correctional officers may be terminated

summarily for any reason during their probationary

5

(...continued)

required one). But the cases cited in the text (and innumerable

others that could be cited on the point) show that state proce-

dural requirements for termination do not provide a federally

protected property interest in continued employment.

24 No. 10-2680

period. Because Redd was still within her 12-month

probationary period, she had no protected interest in

continued employment at the time of her resignation.

Finally, Redd argues that Nolan “defrauded” her into

resigning on October 31st (while she was still within

her probationary period) because the Sheriff did not

actually approve her termination until November 21st.

On October 31st, Nolan told Redd that if she did not

resign she would be fired, and Redd claims that she

resigned in reliance on Nolan’s statement. She contends

that if she had waited, her termination would not have

been effective until November 21st when the Sheriff

approved her termination. However, Redd did not plead

a fraud claim. Even if she had, her argument is pure

speculation. No one knows what would have happened,

or when, if Redd had not resigned on October 31st. The

fact that the Sheriff did not formally sign off on Redd’s

termination until November 21st could not retroactively

change Redd’s status on October 31st. We affirm the

grant of summary judgment on the due process claim.

The judgment of the district court is A FFIRMED.

11-29-11