389 F.3d 685 (7th Cir. 2004), 03-3630, Baird v. Board of Educ. for Warren Community Unit School Dist. No. 205

Docket Nº:03-3630.
Citation:389 F.3d 685
Party Name:Kelly BAIRD, Plaintiff-Appellant, v. BOARD OF EDUCATION FOR WARREN COMMUNITY UNIT SCHOOL DISTRICT No. 205, Jo Daviess County, Illinois, Monica Stephan, Analisa Cleary, Judy Gates, Mary Vincent, Joseph Green, Donald Hill, and Robert Lethlean, Defendants-Appellees.
Case Date:November 12, 2004
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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389 F.3d 685 (7th Cir. 2004)

Kelly BAIRD, Plaintiff-Appellant,


BOARD OF EDUCATION FOR WARREN COMMUNITY UNIT SCHOOL DISTRICT No. 205, Jo Daviess County, Illinois, Monica Stephan, Analisa Cleary, Judy Gates, Mary Vincent, Joseph Green, Donald Hill, and Robert Lethlean, Defendants-Appellees.

No. 03-3630.

United States Court of Appeals, Seventh Circuit

November 12, 2004

Argued Sept. 14, 2004.

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John B. Murphey (argued), Rosenthal, Murphey, Coblentz & Janega, Chicago, IL, for Plaintiff-Appellant.

Nancy F. Krent (argue), Hodges, Loizzi, Eisenhammer, Rodick & Kohn, Arlington Heights, IL, for Defendants-Appellees.

Before CUDAHY, ROVNER and WILLIAMS, Circuit Judges.

CUDAHY, Circuit Judge.

Here we confront the question whether a state breach of contract action provides adequate due process to protect the rights of a school superintendent facing termination, whose pre-termination hearing fell short of due process requirements. For the reasons to be set forth, we conclude that, in the circumstances presented, it does not. We also hold that the superintendent to be terminated did not waive his procedural due process claim by attending his pre-termination hearing only to object to its procedures. Accordingly, we reverse.


The parties to this conflict are the dual centers of authority that guide public education throughout the country. On the one hand is the school board, representing the people, and on the other hand, the school board's selected operating leader of the schools, the superintendent. In 2000, plaintiff Kelly Baird was hired by the Warren County School District No. 205 Board of Education to serve as Superintendent and Principal under a three-year contract that provided he could be dismissed only "for cause." (Superintendent/Principal Employment Contract at A.7.) The contract broadly defined "cause" as "any conduct, act, or failure to act by the Superintendent which is detrimental to the best interests of the School District." (Id. at A-8.) The contract also provided that reasons for discharge were to be given in writing to the Superintendent, who would then be entitled to notice and a pre-termination hearing before the Board to discuss the merits. (Id.)

Early in the school year, Baird found himself under close scrutiny by certain Board members, who in conjunction with their observations, began to collect a variety of deprecatory comments about Baird and his activities from secretaries, teachers and other district employees. This on-the-sly investigation of the new Superintendent continued throughout the school year until April of 2001, when the accumulated tidbits of derogation were distilled into the form of Baird's annual performance review. Pursuant to the contract, on April 18, 2001, the Board presented Baird with its evaluation of his performance and a letter that notified him of its intent to terminate him for cause for the reasons

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contained in the evaluation and advised him of a hearing to consider his termination to take place on May 16, 2001.

Upon receiving this letter, Baird contacted his attorney, who promptly responded to the Board by letter requesting a continuance, copies of underlying documents, the names of individuals who had provided information included in the employment evaluation and the recusal of certain "biased" Board members who had led the investigative efforts against Baird. The Board in its reply denied these requests and stated further that it would not call witnesses, that it would not identify the individuals whose claims had provided the substance of the employment evaluation, that it could not compel any district employees to attend the hearing, that Baird was only entitled to "notice and the opportunity to be heard" and that Baird could question Board members only as to issues about which those members had spoken. In the final communication between the parties, which took place on the day of the hearing, Baird's attorney objected to the hearing procedures specified by the Board as unfair. That evening, when the Board convened to discuss his termination, Baird appeared with his attorney to protest what he claimed to be contractual and due process violations, and he then departed. The Board proceeded to consider Baird's termination in his absence, and predictably voted to end what had become an acrimonious employment relationship. Thereafter, it forwarded to Baird a copy of its Resolution of Termination.

Having been fired without receiving what he considered to be a fair hearing, Baird brought an action in state court seeking damages against the Board pursuant to 42 U.S.C. § 1983, alleging that the Board's termination procedures violated his right to procedural due process. Baird claimed that certain Board members were biased against him and could not have served as neutral decision makers. He also asserted a breach of contract claim under Illinois law. After the Board removed the case to federal court, Baird filed a motion for partial summary judgment as to liability on his due process claim alleging an insufficient hearing, and the Board and Board members filed a motion for summary judgment on all claims. Thus, there were cross-motions on all issues save the issue of biased decision makers.

The district court granted the Board's motion and declined to exercise supplemental jurisdiction over Baird's common law breach of contract claim, remanding it back to state court. Citing Cleveland Board of Education v. Loudermill, 470 U.S. 532, 546, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985), the District Court stated that, provided there was a full due process hearing after termination, a pre-termination hearing need only provide notice of the charge, an explanation of the basis of the charge and an opportunity to respond. Baird's pre-termination hearing had satisfied these requirements. The district court concluded that here the state suit for breach of contract met due process requirements. In addition, the district court rejected Baird's allegations of bias, finding that his evidence had not overcome the presumption that Board members were acting in the public interest and that their concerns had stemmed from Baird's job performance and not personal animosity.

The issue here is whether a state breach of contract suit provides due process if the pre-deprivation hearing does not. We also turn to the question whether a public employee waives the right to challenge a pre-termination hearing on due process grounds when he attends the hearing only to object to its procedures.

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In reviewing a grant of summary judgment, we review the district court's determination de novo. New Burnham Prairie Homes, Inc. v. Vill. of Burnham, 910 F.2d 1474, 1477 (7th Cir. 1990).


We agree with the district court's determination that the Board members' decision to terminate Baird was not tainted with bias. While the conduct of certain Board members appears to have been petty and maladroit, this seems to have been more a matter of modus operandi and style than of substantial prejudice. We are not persuaded, however, that the Board's procedures were entirely fair. The truncated pre-termination hearing afforded to Baird could comport with due process only if he received full due process promptly after termination. The error here was in determining under what circumstances a breach of contract suit can afford due process.

There can be no due process without "the opportunity to be heard 'at a meaningful time and in a meaningful manner.' " Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976) (quoting Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 14 L.Ed.2d 62 (1965)). A hearing "appropriate to the nature of the case" must precede the "deprivation of life, liberty or property." Loudermill, 470 U.S. at 541, 105 S.Ct. 1487 (internal citations omitted). A court considering what process is due in a specific situation must weigh three factors: "[f]irst, the private interest that will be affected by the official action; second, the risk of erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail." Mathews, 424 U.S. at 335, 96 S.Ct. 893.


The Supreme Court has long recognized that a public employee can have a constitutionally protected property interest in continued employment; such interests "are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law ...." Bd. of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972); Colburn v. Tr. of Indiana Univ., 973 F.2d 581, 589 (7th Cir. 1992) ("Property interests exist when an employer's discretion is clearly limited so that the employee cannot be denied employment unless specific conditions are met."). Applying the Mathews test to determine that terminated school district employees were not entitled to full pre-termination hearings in Loudermill, the Supreme Court stated that a pre-termination hearing need only be "an initial check against mistaken decisions--essentially, a determination of whether there are reasonable grounds to believe that the charges against the employee are true and support the proposed action." Loudermill, 470 U.S. at 546, 105 S.Ct. 1487. The Court's holding, however, rested on the fact that the terminated employees were entitled to a post-termination hearing before the Ohio Personnel Board, and the Court cautioned that "the existence of post-termination procedures is relevant to the necessary scope of pre-termination procedures." Id. at 546-47, 105 S.Ct. 1487.


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