Border v. City of Crystal Lake

• Citation: 75 F.3d 270
• Decision Date: 23 January 1996
• Docket Number: No. 95-1900,95-1900
• Parties: Richard BORDER, Plaintiff-Appellant, v. CITY OF CRYSTAL LAKE, an Illinois municipal corporation, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 270

75 F.3d 270

Richard BORDER, Plaintiff-Appellant, v. CITY OF CRYSTAL LAKE, an Illinois municipal corporation,

Defendant-Appellee.

No. 95-1900.

United States Court of Appeals, Seventh Circuit.

Argued Sept. 27, 1995.

Decided Jan. 23, 1996.

Matthew J. Piers, Jonathan A. Rothstein (argued), Jennifer L. Fischer, Michael J. Flaherty, Gessler, Flynn, Fleischmann, Hughes & Socol, Chicago, IL, for Plaintiff-Appellant.

Michael Coppedge (argued), Cowlin, Curran & Coppedge, Crystal Lake, IL, for Defendant-Appellee.

Before FLAUM, EASTERBROOK, and WOOD, Jr., Circuit Judges.

FLAUM, Circuit Judge.

Richard Border sued the City of Crystal Lake, Illinois alleging a denial of due process in his employment termination and also retaliatory discharge under Illinois tort law. The district court granted summary judgment for the City on the due process claim, finding that Border had failed to establish a property right in his job, and dismissed the pendent state law claim. We affirm. ¹

I.

The following are the relevant facts, taken in the light most favorable to the non-moving party, i.e., Border, and with all reasonable inferences drawn in his favor. Lawshe v. Simpson, 16 F.3d 1475, 1478 (7th Cir.1994). Richard Border began working for the City of Crystal Lake ("Crystal Lake") in August 1986 in the street department. In 1987 Border was given a copy of the Crystal Lake Personnel Policies Handbook ("Handbook"). Border asserts that the Handbook was adopted annually by the Crystal Lake City Council. ² The contents of the Handbook are at the heart of Border's case, so it is necessary to review the relevant sections in some detail.

The preface to the Handbook's numbered provisions notes that its "policies may be amended or revised to meet changing conditions." The Handbook establishes a program of yearly performance reviews and also a format for employee grievances and concerns. The grievance provision states that the outlined procedures "shall be utilized whenever an employee desires to raise a question concerning his or her employment, the operational procedures affecting the employee, or the review of his or her termination." The Handbook provision laying out Crystal Lake's sick-leave policy notes that "[e]xcessive use or abuse of sick leave is a valid criterion in employee evaluation and may be grounds for disciplinary action or termination." Similarly, the section on medical disability leave states that "[f]ailure to return to work after being released by a physician to do so is cause for dismissal." This section also establishes that Crystal Lake can require medical information verifying an employee's disability or continuing disability at any time. Additionally, the Handbook provides that an employee could be subject to "disciplinary action" for non-compliance with the elaborated rules on secondary employment and for using an official position to coerce or influence others politically.

The language most pertinent to the issues in this case, however, appears in the second-to-last section of the Handbook, under the heading "General." The relevant paragraph reads as follows During the entire duration of employment with the City, all employees are responsible for adherence to all codes, rules, policies, and regulations of the City, and for conduct and performance in an acceptable manner. All employees are subject to, and department heads and supervisors are responsible for, verbal or written reprimand, suspension, or dismissal from employment with the City at any time, as may be appropriate, for conduct or performance. Nothing in these Personnel Policies is intended to imply that these policies serve as an employment contract.

In addition to the written Handbook conditions of employment, Border maintains that shortly after he started working, he was told by his supervisor that he could be fired for not showing up to plow snow. In the time that Border worked for Crystal Lake, he never heard of anyone who was fired without a good reason being given. Moreover, Jacqueline Petersen, Crystal Lake's personnel director, stated in her 1994 deposition that she had reviewed a list of the employees terminated in the preceding twelve years, and in each case a reason was stated for the termination.

Late in 1990, Border injured his back. On December 17, 1990, he completed a written report of his injury. Jacqueline Petersen initially questioned the nature and extent of his injury. Border continued to have back pain throughout that winter and eventually saw doctors who confirmed that he did have a lower back injury. On February 27, 1991, he filled out a worker's compensation claim. By March 1991, Border found himself unable to continue working.

In April 1991, Border returned to work under his doctor's limitation that he perform light duty work only. He was sent home, however, when it was determined that there was no such work available. On July 2 of that year, Petersen sent Border a letter stating that by July 10 Crystal Lake needed documentation from Border's physician regarding his present physical condition, treatment plan, and prognosis. On July 12, Border's attorney wrote Petersen, stating that they had "previously tendered ... sufficient documentation," but that additional copies of this (old) information were enclosed. On July 18, Petersen again wrote Border, stating that the information requested in the July 2 letter had not been received and should be submitted immediately. On July 23, Border hand delivered a letter to Petersen, acknowledging her July 18 letter and directing her to his attorney for all future correspondence. The letter further stated that Border had contacted his attorney and directed him to send the updated information as soon as possible. (Border offers no evidence that such information was actually sent.) The letter provided the name, address, and phone number of this attorney. Finally, on August 5, 1991, Border hand delivered another letter to Petersen, this time stating that he had retained new counsel and listing the new attorney's name, address, and phone number. (Crystal Lake denies receiving either of these hand-delivered letters.) These were the only contacts between Border and Crystal Lake during the remainder of 1991.

On January 2, 1992, Petersen wrote a letter to Border, informing him that he should consider his employment terminated as of December 31, 1991. She noted that he had never provided the medical documentation requested in her two July 1991 letters. She also stated that each month since July, Border had personally brought in a check paying the premium for his health and dental benefits, yet never tried to talk to her or her supervisor about his physical condition. She stated that he had, in essence, abandoned his job with the City of Crystal Lake.

II.

We review the district court's grant of summary judgment de novo, evaluating the evidence in the light most favorable to the non-moving party. Smith v. Shawnee Library Sys., 60 F.3d 317, 320 (7th Cir.1995). We will affirm the entry of summary judgment only if there is no genuine issue as to any material fact, such that the moving party is entitled to judgment as a matter of law. FED.R.CIV.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

In order to make his due process claim, Border must first establish that he had a property interest in his job of the sort that the Constitution protects. The Supreme Court has been clear that such property interests "are not created by the Constitution. Rather they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law...." Board of Regents of State Colleges v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972). A person's interest in a benefit, such as continued employment, constitutes "property" for due process purposes only if "there are such rules or mutually explicit understandings that support his claim of entitlement to the benefit." Perry v. Sindermann, 408 U.S. 593, 601, 92 S.Ct. 2694, 2699-2700, 33 L.Ed.2d 570 (1972) (emphasis added). The Supreme Court has further directed us to examine state law to determine whether a person's interest in continued employment qualifies as a legally-protected property interest. Id. at 602 n. 7, 92 S.Ct. at 2700 n. 7; Bishop v. Wood, 426 U.S. 341, 344, 96 S.Ct. 2074, 2077, 48 L.Ed.2d 684 (1976) ("[T]he sufficiency of [a] claim of entitlement must be decided by reference to state law."); see also Miller v. Crystal Lake Park Dist., 47 F.3d 865, 867 (7th Cir.1995) ("[O]ur cases have equated 'property' with the set of claims that state law recognizes.").

A protected property interest in employment can arise from a statute, regulation, municipal ordinance, or an express or implied contract--those "rules or understandings that secure certain benefits and that support claims of entitlement to those benefits." Domiano v. Village of River Grove, 904 F.2d 1142, 1147 (7th Cir.1990) (quoting Roth, 408 U.S. at 577, 92 S.Ct. at 2709); Hohmeier v. Leyden Community High Schools District 212, 954 F.2d 461, 464 (7th Cir.1992) (state agency regulation and municipal ordinance). ³ In some contexts, promises made in an employee handbook can give rise to a legitimate claim of entitlement sufficient to be protected as a property interest. Campbell v. City of Champaign, 940 F.2d 1111, 1112 (7th Cir.1991).

Since Border was employed in Illinois, we look to Illinois law to determine whether he had a property interest in his job. The Illinois Supreme Court has established that "an employee handbook or other policy statement creates enforceable contractual rights if the traditional requirements for contract formation are present." Duldulao v. Saint Mary of Nazareth Hosp. Ctr., 115 Ill.2d 482, 106 Ill.Dec. 8, 12, 505 N.E.2d 314, 318 (1987). The requirements for such a contractual obligation are as follows:

First, the language of the policy...