Atterberry v. Sherman

• Decision Date: 07 July 2006
• Docket Number: No. 04-4115.,04-4115.
• Parties: Jeffrey L. ATTERBERRY, Plaintiff-Appellant, v. Leonard SHERMAN, John Coghlan, Emmons Russell, and Robert Hewson, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

453 F.3d 823

Jeffrey L. ATTERBERRY, Plaintiff-Appellant, v. Leonard SHERMAN, John Coghlan, Emmons Russell, and Robert Hewson, Defendants-Appellees.

No. 04-4115.

United States Court of Appeals, Seventh Circuit.

Argued October 27, 2005.

Decided July 7, 2006.

James P. Baker (argued), Baker, Baker & Krajewski, Springfield, IL, for Plaintiff-Appellant.

Laura Wunder (argued), Office of The Attorney General, Chicago, IL, for Defendants-Appellees.

Before RIPPLE, KANNE, and WOOD, Circuit Judges.

KANNE, Circuit Judge.

Jeffrey Atterberry was a high-level employee within the Illinois Department of Professional Regulation (the "DPR"). After allegedly engaging in misconduct, Atterberry was reassigned to perform the duties of a low-level employee, all the while retaining his salary and job classification as before. While some might consider themselves lucky to be able to perform easier work for the same amount of pay, Atterberry did not. He filed this 42 U.S.C. § 1983 suit against his four superiors (collectively, the "state actors"), claiming he was effectively demoted from his position without due process. The district court found the state actors were entitled to qualified immunity. For similar reasons, we agree, and affirm.

I. HISTORY

Atterberry has worked for the DPR since 1984. Since 1995, he held the position of Public Service Administrator; specifically, he was Chief of the DPR's Enforcement Administration Unit (the "EAU"). He supervised about 10 employees, and he had his own office, car, and parking space.

An internal audit of the EAU was conducted around February 1999. The auditor requested all flex time records for everybody in the EAU. Atterberry responded that there were no flex time records. It turns out only DPR investigators earned flex time, and the EAU did not have any investigators. There was, however, a "practice" in place in which EAU employees earned "comp time," which was informally referred to as flex time. Not only did Atterberry not inform the auditor of this comp time, but as will be discussed in more detail later, he allegedly took active steps to keep this information from the auditor.

Atterberry's troubles began a year later in March 2000 when his longtime administrative assistant complained to defendant John Coghlan, the Director of Statewide Enforcement of the DPR, about Atterberry's conduct. Specifically, the assistant stated Atterberry had instructed her a year earlier to remove and hide all flex time records and not to mention them to the auditors. She also complained that Atterberry was often nowhere to be found during business hours and that he had told her to submit false travel vouchers on his behalf. She also reported being fearful of retaliation, should Atterberry learn of her reporting this information.

The next day, Coghlan met with Atterberry. Atterberry denied any misconduct; he also conveyed that he believed his statement to the auditor regarding the flex time records was entirely accurate.

About a week later, Atterberry called his administrative assistant into his office. The assistant had been giving Atterberry the cold shoulder recently, and Atterberry "wanted to clear the air." What actually happened at that meeting is subject to some dispute; suffice it to say, the assistant felt threatened and upset as a result, and characterized the meeting as a confrontation. She then complained to Coghlan the next day, and reported that she was now afraid of Atterberry.

That same day, Coghlan reassigned Atterberry out of the EAU to perform the duties of an investigator "for the operational needs of the Department." Atterberry no longer supervised any employees. He now had to share an office, and he lost his car and parking space. He also was assigned an old metal desk with a broken chair. However, his salary and job classification (Public Service Administrator) remained exactly the same. He was assigned (and he fulfilled) the duties and responsibilities of an investigator, and he was told the reassignment was temporary.

A short time after Atterberry's reassignment, Atterberry filed a claim with the Illinois Civil Service Commission (the "Commission"), arguing he had been effectively demoted. The Commission ultimately found "no demotion action has been brought against you." It also found no violation of the "Code or Rules" and further stated it did not have jurisdiction over Atterberry's complaints regarding his working conditions.

During this time, Atterberry filed several grievances related to his alleged demotion and related working conditions. Some of these were denied (including his demotion grievance) or withdrawn, while others were resolved in Atterberry's favor. The most important action, however, began on March 24, when the DPR opened an investigation to determine whether Atterberry had engaged in misconduct. Special counsel was retained, and the counsel's report was issued in July 2000. Defendant Leonard Sherman, Director of the DPR, evaluated the report and determined Atterberry had indeed engaged in serious misconduct. Discharge proceedings were instituted, albeit not for several months. They continued until December 2000. Written responses were filed, and pre-termination hearings were held in the Spring of 2001. Atterberry was discharged on May 11, 2001. Atterberry appealed his discharge to the Commission, which ordered in December 2001 that Atterberry be reinstated due to a lack of evidence of misconduct. In the end, Atterberry continued performing the duties of an investigator until February 2001, when he went on medical leave, a status he continues to hold today.

Atterberry then filed suit in the district court, claiming he was effectively demoted without being afforded due process. Atterberry alleged that the four state actors, in their respective official capacities,¹ violated Atterberry's Fourteenth Amendment right to due process. The district court found there were genuine disputes of material facts as to whether the state actors had infringed upon Atterberry's right to due process and whether he had been deprived of property. However, the district court found the state actors were entitled to qualified immunity, as Atterberry had failed to show that, as of the date of Atterberry's reassignment, "an employee, who was reassigned to lesser but still meaningful duties pending an investigation of alleged wrongdoing by the employee, but who retained both his pay and his job classification upon reassignment, had suffered the loss of a clearly established property right in his employment."

II. ANALYSIS

We review a district court's grant of summary judgment de novo. Isbell v. Allstate Ins. Co., 418 F.3d 788, 793 (7th Cir. 2005) (citation omitted). Summary judgment is appropriate if "`the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.'" Id. (quoting Fed. R.Civ.P. 56(c)); Ezell v. Potter, 400 F.3d 1041, 1046 (7th Cir.2005) (citation omitted); see Celotex Corp. v. Catrett, 477 U.S. 317 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

As an initial matter, we question whether Atterberry was even demoted. As alluded to earlier, a significant portion of Atterberry's protected interest lies in the Illinois Personnel Code, which provides that he could not be removed, discharged, demoted, or suspended for more than 30 days except for cause. See 20 ILCS § 415/11 (2000). It is undisputed Atterberry was not removed or suspended for more than 30 days. He was discharged, but he was later reinstated. In accordance with Atterberry's amended complaint, his entire argument lies in his claim that he was effectively demoted. He was relegated to the duties of a lowly investigator, while he simultaneously retained his salary and position as a Public Service Administrator. However, the Commission found Atterberry was not demoted, at least according to how that term is defined by the Illinois Administrative Code.

Furthermore, in Lyznicki v. Board of Education, School District 167, Cook County, Illinois, 707 F.2d 949 (7th Cir. 1983), we addressed the definition of "demotion." We explained that if we accepted the employee's argument, "`demotion' would then mean a reduction in rank that did not result in a lower salary—an odd meaning to impress on the word. Demotion and reduction in rank must be synonyms in the statute<sup>2</sup> as they are in ordinary language." Id. at 952 (emphasis added). We also stated, without deciding, that "[w]hether demotion without loss of pay would be a `deprivation' in a constitutional sense may be doubted. . . ." Id. at 951. Considering this reasoning and the finding of the Commission, it does sound odd to say Atterberry was demoted (or to base his entire claim on effective demotion, as opposed to constructive discharge), given that he retained his salary and position. In any event, we need not resolve this issue because qualified immunity, the main focus of the parties' arguments, more clearly leads us to find in favor of the state actors.

In order to proceed against the state actors, Atterberry must (1) adequately allege the violation of a constitutional right, and (2) show the right was clearly established at the time of the alleged violation, such that a reasonable public official would have known that his conduct was unlawful. See Delgado v. Jones, 282 F.3d 511, 515-16 (7th Cir.2002) (citing Harlow v. Fitzgerald, 457 U.S. 800, 818-19, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). Although Atterberry is not required to point to a case which precisely mirrors the facts of this case, he must, at a minimum, "point to a closely analogous case decided prior to the challenged conduct." Sonnleitner v. York, 304 F.3d 704, 716 (7th Cir.2002) (citation omitted).

First, the facts in this case, even when viewed in the light most favorable to the plaintiff, simply do not show...