144 F.3d 448 (7th Cir. 1998), 97-2081, Kyle v. Morton High School

Docket Nº:97-2081.
Citation:144 F.3d 448
Party Name:Charles KYLE, Plaintiff-Appellant, v. MORTON HIGH SCHOOL, District 201, Margaret A. Kelly, Judy Thompson, et al., Defendants-Appellees.
Case Date:May 11, 1998
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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Page 448

144 F.3d 448 (7th Cir. 1998)

Charles KYLE, Plaintiff-Appellant,

v.

MORTON HIGH SCHOOL, District 201, Margaret A. Kelly, Judy

Thompson, et al., Defendants-Appellees.

No. 97-2081.

United States Court of Appeals, Seventh Circuit

May 11, 1998

Argued Dec. 10, 1997.

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[Copyrighted Material Omitted]

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John J. Casey, Harry Golter (argued), Hamblet, Casey, Oremus & Vacin, Chicago, IL, for Plaintiff-Appellant.

Ronald Cope, John F. Donahue (argued), Ancel, Glink, Diamond, Cope & Bush, Chicago, IL, for Defendants-Appellees.

Before CUDAHY, FLAUM and MANION, Circuit Judges.

PER CURIAM.

One of the defendants, Morton High School (Morton), did not renew the teaching contract of the plaintiff, Charles Kyle. Kyle sued the school district and members of its board in federal court, seeking damages and equitable remedies for deprivation of various federal constitutional rights under the Civil Rights Act of 1871, Rev. Stats. §§ 1979, 1980, as amended, 42 U.S.C. §§ 1983, 1985(3), and for wrongful termination and intentional infliction of emotional distress under Illinois law. The district court dismissed the federal causes of actions for failure to state a claim upon which relief can be granted, see Fed.R.Civ.P. 12(b)(6), and, in the absence of the federal claims, declined to exercise supplemental jurisdiction over Kyle's state law counts, see 28 U.S.C. § 1367(c)(3).

Kyle appeals, contending the district court dismissed his federal claims improperly. The dismissal ended Kyle's district court case, and we now conduct an independent review of the propriety of the dismissal. See 28 U.S.C. §§ 1291, 1294; Salve Regina College v. Russell, 499 U.S. 225, 238, 111 S.Ct. 1217, 113 L.Ed.2d 190 (1991); Stevens v. Umsted, 131 F.3d 697, 700 (7th Cir.1997). In our review we consider well-pleaded factual allegations in the complaint to be true. We make permissible inferences in the plaintiff's favor, and our recitation of the facts reflects this principle. See Mallett v. Wisconsin Div. of Vocational Rehabilitation, 130 F.3d 1245, 1248 (7th Cir.1997).

According to Kyle's amended complaint, he was the Director of Community Education and Assistant to the Superintendent at Morton in Cicero, Illinois. At a special meeting of the Morton Board of Education (the Board) on March 27, 1996 (the Board Meeting), the Board resolved to honorably dismiss certain support staff employees. The Board explained that the employees' positions were being eliminated to save money. According to the complaint, however, "[t]he reason alleged by the Board for the elimination of Plaintiff's position was a sham. There was no financial benefit to Morton eliminating Plaintiff's position." The complaint states that "[s]hortly after the March 27, 1996, executive session, Plaintiff was advised by a Board Member and others who attended the meeting that the reason for Plaintiff's termination was for political and advocacy reasons. Thus, Defendants acted in knowing violation of Plaintiff's First Amendment rights to free speech and association." The complaint also alleges that the "named individual defendants have acted together and in conspiracy with other individuals who are politicians or political functionaries to deprive Plaintiff of his position, to hinder and harass him in seeking new employment or contract work and to generally punish Plaintiff for political

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and advocacy activities which the conspirators deemed adverse to their political interests and which they intended to stifle by their actions against Plaintiff." Am. Compl. pp 3, 6, 8, 10, 12.

I. Due process claim

In Count I of the complaint, Kyle maintains that under the Illinois School Code he was entitled to a written notice of dismissal that specified the true reason he was fired. 1 Kyle argues that because his notice of dismissal allegedly gave an inaccurate reason for his termination, he was dismissed without adequate notice of his dismissal. In Kyle's memorandum in opposition to the motion to dismiss, Kyle also asserted that the Board failed to comply with the Illinois Open Meetings Act, 5 Ill. Comp. Stat. 120/1-3, because the record of the Board Meeting does not reflect any discussion of the reasons for Kyle's termination. 2 Because of these alleged procedural irregularities, Kyle argues, his firing deprived him of due process and a property interest in his public employment.

The district court concluded that, as a nontenured teacher, Kyle had no property interest in his job under Illinois law. Therefore, the Constitution did not entitle Kyle to due process. See Austin v. Board of Educ., 562 F.2d 446, 452 (7th Cir.1977); Miller v. School Dist. No. 167, 500 F.2d 711, 712 (7th Cir.1974). Kyle asserts that under Illinois case law subsequent to Austin and Miller, when the notice of termination does not provide the true reason for a nontenured teacher's dismissal, the dismissal is void. The district court rejected the plaintiff's interpretation of these more recent state cases, Hampson v. Board of Education, 215 Ill.App.3d 817, 159 Ill.Dec. 385, 576 N.E.2d 54 (Ill.App.Ct.1991), and Howard v. Board of Education, 160 Ill.App.3d 309, 112 Ill.Dec. 131, 513 N.E.2d 545, 547 (Ill.App.Ct.1987), on the grounds that "in the plaintiff's case defendants did specify the reason for his dismissal--shortage of funds. Therefore, the notice the plaintiff received was not defective." The district court did not address Kyle's contention that the Board violated the Open Meetings Act by failing to record any discussion of the reasons for Kyle's termination.

On Kyle's claim of a due process violation for deprivation of a property interest in his probationary teaching position, the district court read our precedents correctly. Kyle's due process claim fails because, under Illinois law, he had no property interest in his job at Morton. Thus, for Due Process Clause purposes, it is irrelevant whether the notice of dismissal of a probationary teacher violated the procedural requirements of the Illinois School Code, or whether the Board Meeting complied with the Illinois Open Meetings Act. Even assuming that intervening decisions by the Illinois appellate courts after Miller established stricter procedural requirements for the dismissal of a probationary teacher under the Illinois School Code, these procedural refinements could not create a property interest in Kyle's position as a probationary teacher. See Fleury v. Clayton, 847 F.2d 1229, 1231 (7th Cir.1988); see also Patterson v. Portch, 853 F.2d 1399, 1405 (7th Cir.1988) (noting property interest for

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due process purposes requires that "the law establish[ ] substantive criteria for when the plaintiff could be deprived of the interest") (emphasis added); cf. Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 541, 105 S.Ct. 1487, 1493, 84 L.Ed.2d 494 (1985) ("[T]he Due Process Clause provides that certain substantive rights--life, liberty, and property--cannot be deprived except pursuant to constitutionally adequate procedures. The categories of substance and procedure are distinct."). Kyle does not claim that developments in Illinois law since Miller have established that a probationary teacher can be fired only for misconduct, so it is still true that a probationary teacher lacks a property interest in his job for Due Process Clause purposes.

Whether an Open Meetings Act confers substantive rights for Due Process Clause purposes seems to be a question of first impression among the federal courts of appeals, but, at least in the case of the Illinois act, it is not a difficult question. There is nothing in the language of the Open Meetings Act that indicates any such substantive limitations on the termination of Illinois' public employees. Kyle has neither cited case law nor presented legal analysis suggesting otherwise. Lacking a tenure right in his former position, Kyle had no property interest entitling him to due process under the Fifth and Fourteenth Amendments. See Jungels v. Pierce, 825 F.2d 1127, 1130 (7th Cir.1987).

It is so firmly established that procedural requirements alone cannot be the basis for a property right that we consider another possible interpretation of Kyle's position. Charitably construed, Kyle's real argument seems to be that because of procedural lapses attending his termination, under Illinois law he was really not terminated. Therefore, he has become a tenured teacher, and it was the defendants' failure to offer him a contract for another year that deprived him of a constitutionally-protected property right: "Since Plaintiff's position was renewed by operation of law for the 1996 school year, he is fully tenured." Am. Compl. p 8. In fact, Kyle's pendent state law claim for wrongful termination seeks, among other things, a declaratory judgment that his termination was null and void. Am. Compl. p 16. If granted, such a judgment might conceivably result in Kyle's becoming tenured. Kyle appears to have satisfied all of the conditions for tenured status except the "requirement" that he not receive a timely notice of dismissal before the end of his probationary period. See 105 Ill. Comp. Stat. 5/24-11 (West 1993).

As a claim under § 1983, however, this argument does not survive close scrutiny. It amounts to a complaint that the defendants have prevented Kyle from acquiring a property right. This is perhaps a deprivation of sorts in ordinary language, but it is not a cause of action under § 1983, for good reason. It would tend to erode the distinction between deprivations of substantive rights guaranteed by the Constitution and deprivations of procedural interests under state law, a distinction at the heart of Due Process Clause jurisprudence. See, e.g., Loudermill, 470 U.S. at 541, 105 S.Ct. at 1492-93; Shvartsman v. Apfel, 138 F.3d 1196, 1199-1200 (7th...

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