Common v. Williams

• Decision Date: 10 November 1988
• Docket Number: No. 87-3151,87-3151
• Parties: Lillie COMMON, Plaintiff-Appellant, v. Investigator Willie J. WILLIAMS and Phillip T. Hardiman, in his official capacity as Executive Director of the Cook County Department of Corrections, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 467

859 F.2d 467

3 Indiv.Empl.Rts.Cas. 1483

Lillie COMMON, Plaintiff-Appellant, v. Investigator Willie J. WILLIAMS and Phillip T. Hardiman, in his official capacity as Executive Director of the Cook County Department of Corrections Defendants-Appellees.

No. 87-3151.

United States Court of Appeals Seventh Circuit.

Argued June 2, 1988.

Decided Sept. 29, 1988.

As Amended Oct. 3, 1988.

Rehearing and Rehearing In Banc Denied Nov. 10, 1988.

Kenneth N. Flaxman, Kenneth N. Flaxman, P.C., Chicago, Ill., for plaintiff-appellant.

Nancy Martin, Cook County State's Attys. Office, Chicago, Ill., for defendants-appellees.

Before POSNER, COFFEY and KANNE, Circuit Judges.

COFFEY, Circuit Judge.

Lillie Common appeals from the district court's order entering summary judgment in favor of defendants, Cook County Department of Corrections Investigator Willie J. Williams and Cook County Department of Corrections Executive Director Phillip T. Hardiman in a civil rights action brought by Common against Williams and Hardiman under 42 U.S.C. Sec. 1983. Common claims that Williams and Hardiman denied Common her procedural due process right to a hearing prior to her alleged constructive discharge. We affirm.

I

The Cook County Department of Corrections employed Lillie Common as a cadet corrections officer on February 19, 1985. Following a ten week training period at the Sheriff's Academy, Common was sworn in as a Deputy Sheriff on July 13, 1985. She was assigned as a corrections officer in the RTU Unit, which houses patients on psychotropic drugs. Common served as a corrections officer until December 24, 1985. During that period Common received a warning letter on excessive absenteeism dated August 22, 1985. Common was also absent on a number of days during the month of October 1985. After working on December 24, 1985, Common began an extended period of absence from employment because of illness. Between December 24, 1985, and March 25, 1986, Common missed all but a portion of one day.

On March 26, 1986, Cook County Department of Corrections Investigator Willie J. Williams went to Common's home. According to Common, Williams stated that he had been sent by Cook County Department of Corrections Executive Director Phillip Hardiman to take possession of Common's badge and shield and to accept her resignation. Common stated that Williams did not indicate the reason why her resignation was requested at this time. However, an April 8, 1980, letter from Hardiman to Common's attorney reveals that Hardiman found that Common's unexplained absenteeism record was unacceptable. Williams furnished Common with a draft resignation form. Common claims that after she stated she was unwilling to resign, Williams threatened to call the police. Common also states that Williams told her "they would fire [her] from [her] job and that would go on [her] file as being fired." Common contends she signed a resignation form and yielded her badge and shield "under duress" five or ten minutes after Williams' arrival at her house.

Common uses correspondence between her attorney and Cook County Department of Corrections Executive Director Phillip T. Hardiman following her resignation to support her position that she was entitled to a hearing prior to her termination. In a letter to Common's attorney dated April 8, 1986, Hardiman made his statement that Common's unexplained absenteeism was unacceptable. He further explained:

"As you are aware, no employer can tolerate such actions. This was explained to Ms. Common by the investigators. The Department's only alternative was to place Ms. Common before the Sheriff's Merit Board for termination. Employees in this position are always given the opportunity to resign as to not blemish their employment record. Ms. Common voluntarily chose this alternative, she was not forced."

(Emphasis supplied). This position was reaffirmed in a deposition in which Hardiman stated that "we felt that we had a very good case against Ms. Common. It made no difference to us one way or the other, whether she resigned or went before the Merit Board." Common also points to Hardiman's statements concerning another employee, Officer Betty Foshee. Common's attorney claimed, in a letter to Hardiman that Foshee had been improperly treated as a probationary employee following her return to work from an injury related disability. Common's attorney's letter notes that Foshee had left work on the day she was scheduled to complete her probation and had apparently returned to work thereafter. In a reply dated March 11, 1986, Hardiman stated:

"The Department does not have the ability to prevent an officer from not becoming a merit employee after one (1) year of service. She has all the rights and benefits of a merit employee. The only difference between a probationary employee and a merit employee is that the only body that can terminate or reduce in rank a merit employee is the Sheriff's Merit Board, a probationary employee can be terminated by the Department."

Common claims that the defendants' actions constituted a constructive discharge in violation of her procedural due process right to a pre-termination hearing. Common's claim is based upon the facts that she resigned in response to Investigator Williams' threats and that the Department of Corrections had a policy of compelling employee resignations to avoid hearings required under the due process clause. The district court granted summary judgment for the defendants on the basis that Common had failed to prove an essential element of her case: "a constitutional property interest in continued employment at the Department of Corrections which entitled her to a pre-termination hearing."

II

It is necessary to briefly note one minor procedural point before addressing the merits of Common's claim. Defendants objected to the district court's consideration of letters from Hardiman to Common's attorney on the basis that these letters were not properly authenticated. It is unclear from the record whether the district court ruled on this objection or considered the documents. It is further unclear whether these letters were admitted as exhibits to Hardiman's deposition, which could have made their consideration appropriate. See Colan v. Cutler-Hammer, Inc., 812 F.2d 357, 365 n. 14 (7th Cir.1987) (per curiam) ("A district court in a federal summary judgment proceeding, may consider materials beyond the pleadings, including exhibits to affidavits and exhibits made a part of a deposition record"); Martz v. Union Labor Life Insurance Co., 757 F.2d 135, 138 (7th Cir.1985) ("The facts must be established through one of the vehicles designed to ensure reliability and veracity--depositions, answers to interrogatories, admissions and affidavits"). In any event, it is unnecessary for us to determine this question or to remand it to the district court for its determination, for the consideration of these letters will not alter our decision on the merits of this case.

III

Summary judgment is properly entered in favor of a party when the opposing party is unable to make a showing sufficient to prove an essential element of a case on which the opposing party bears the burden of proof. As the Supreme Court observed in Celotex Corp. v. Catrett, 477 U.S. 317, 322-323, 106 S.Ct. 2548, 2552-2553, 91 L.Ed.2d 265 (1986):

"In our view, the plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which the party will bear the burden of proof at trial. In such a situation, there can be 'no genuine issue as to any material fact,' since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial. The moving party is 'entitled to judgment as a matter of law' because the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof."

The district court properly recognized that Common's claim turned upon her possession of a procedural due process right to a pre-termination hearing. In order to demonstrate this essential element of her case she was required to show that she had "a constitutional property interest in continued employment at the Department of Corrections." ¹

We have discussed whether an alleged "property" interest may be found under the due process clause in various factual contexts. See, e.g., Patterson v. Portch, 835 F.2d 1399, 1404-1405 (7th Cir.1988); Fleury v. Clayton, 847 F.2d 1229, 1231-1233 (7th Cir.1988); Yatvin v. Madison Metropolitan School District, 840 F.2d 412, 416-417 (7th Cir.1988). A useful starting point in determining whether Common possessed a constitutionally protected "property" interest in continued employment is the United States Supreme Court's decision in Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972), which explained:

"To have a property interest in a benefit, a person must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it.

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Property interests, of course, are not created by the Constitution. Rather, they are created and their dimensions are defined by existing rules or understandings from an independent source such as state law--rules or understandings that secure benefits and that support claims of entitlement to those benefits."

"[P]roperty interests may be a matter of statutory entitlement," or "they may also arise from mutually explicit understandings." Davis v. City of Chicago, 841 F.2d 186, 188 (7th Cir.1988) (citations omitted). In order to provide parties with guidance concerning the type of evidence of custom or policy which can be utilized to...