Barrows v. Wiley

• Decision Date: 22 February 2007
• Docket Number: No. 06-1582.,06-1582.
• Citation: 478 F.3d 776
• Parties: Paul BARROWS, Plaintiff-Appellant, v. John WILEY and Luoluo Hong, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

478 F.3d 776

Paul BARROWS, Plaintiff-Appellant, v. John WILEY and Luoluo Hong, Defendants-Appellees.

No. 06-1582.

United States Court of Appeals, Seventh Circuit.

Argued September 27, 2006.

Decided February 22, 2007.

Lester A. Pines (argued), Cullen, Weston, Pines & Bach, Madison, WI, for Plaintiff-Appellant.

Jennifer Sloan Lattis (argued), Richard Briles Moriarty, Office of the Attorney General, Wisconsin Department of Justice, Madison, WI, for Defendant-Appellee.

Before POSNER, MANION, and WOOD, Circuit Judges.

MANION, Circuit Judge.

Paul Barrows filed a complaint pursuant to 42 U.S.C. § 1983 against his employer, the University of Wisconsin-Madison ("University"), alleging that the University violated his Fourteenth Amendment right to due process by placing him on unpaid administrative leave and forcing him to use various types of leave time to obtain compensation. The district court granted the University summary judgment. Barrows appeals, and we affirm.

I.

The University employed Paul Barrows beginning in 1989. Barrows served in various academic capacities during his employment with the University. Academic staff may serve in "indefinite" or "limited" appointments. An "indefinite appointment is an appointment with permanent status and for an unlimited term, granted by the chancellor to a member of the academic staff. Such an appointment is terminable only for cause under ch. UWS 11 or for reasons of budget or program under ch. UWS 12." Wis. Admin. Code UWS § 10.03(2)(b). A limited appointment is "a special appointment to a designated administrative position." Wis. Admin. Code UWS § 15.01(1). A person who serves in a limited appointment does so at the "pleasure of the authorized official who made the appointment." Id. Additionally, an employee with an indefinite appointment can also hold a limited appointment. Moreover, the limited appointment does not impact any rights due an individual holding an indefinite appointment. Id. Thus, for those serving in a limited appointment who have also received an indefinite appointment, the indefinite appointment remains as a backup position which they may assume at the expiration of their limited appointment. A "backup" position or appointment is another name for an indefinite appointment. In 1997, Barrows received an appointment to a full-time position in the Provost's Office (which was designated as an indefinite backup position). In July 2000, Barrows accepted a limited appointment as Vice Chancellor for Student Affairs, receiving an annual salary of $191,749.00 and reporting to John Wiley, Chancellor of the University. For the next several years, Barrows was apparently successful in performing his assigned duties.

On or before November 1, 2004, however, while at an assembly for a University project, Wiley abruptly asked Barrows to step down from his position as Vice Chancellor.¹ Wiley directed Barrows to submit a letter of resignation, which he reluctantly did. In a letter dated November 1, 2004, Barrows stated that he was stepping down from his position as Vice Chancellor for Student Affairs, explaining that "[w]ith recent changes in my family situation, and the stress those bring, I am proposing to take some personal leave time." In a response letter dated November 2, 2004, Wiley accepted Barrows's resignation and stated that he would schedule a time to speak with Barrows, but recommended as a short-term proposal that Barrows "take leave as necessary to address [his] personal issues." Wiley indicated that after his leave, Barrows could complete a fund-raising project and begin a feasibility study, and after the completion of the latter project speak with Provost Spears if he was interested in "additional roles at UW-Madison." If he was interested in such a position, it would qualify as part of his academic staff backup appointment. Barrows, though, later asserted in an affidavit signed January 3, 2006, that he did not resign from his position, but rather that Wiley fired him. In the meantime, regardless of the subsequent characterization, Barrows went on leave from November 2004 through June 20, 2005. During this time, by using vacation leave, sick leave, and leave in his Annual Leave Reserve Account ("ALRA"), Barrows continued to be compensated at the annual rate of pay he received as Vice Chancellor for Student Affairs ($191,749.00). Specifically, during that time, Barrows received $124,140.18 in gross wages through the use of 524 hours of sick leave, 186 hours of vacation time, and 124 hours of ALRA leave. Then, from June 20, 2005, through June 23, 2005, Barrows worked as a consultant at the University. On June 23, 2005, Barrows was placed in his backup position at the Provost's Office with an annual salary of $72,881.00. That same day, Barrows was placed on paid administrative leave.

Barrows responded by filing a complaint in the district court pursuant to 42 U.S.C. § 1983, asserting that he had a right to immediate placement in his backup position when he was "terminated" in November 2004. He claimed that forcing him to use his vacation leave, ALRA leave, and sick time without notice or opportunity to be heard violated his right to due process. The district court granted the defendants' motion for summary judgment, concluding that Barrows had failed to establish that the University caused him economic harm and that Wiley was entitled to qualified immunity. Barrows appeals.²

II.

A district court's grant of summary judgment is reviewed de novo. Gillis v. Litscher, 468 F.3d 488, 492 (7th Cir.2006). Barrows's constitutional claim is premised on a denial of procedural due process. Specifically, he alleges that he was denied a property right by being required to use leave time, whether sick, vacation, or ALRA, between November 2004 and June 20, 2005, as opposed to being immediately placed in his backup position.

"Procedural due process claims require a two-step analysis. The first step requires us to determine whether the plaintiff has been deprived of a protected interest; the second requires a determination of what process is due." Luellen v. City of E. Chicago, 350 F.3d 604, 613 (7th Cir.2003) (quoting Strasburger v. Bd. of Educ., Hardin County Comm. Unit Sch. Dist. No. 1, 143 F.3d 351, 358 (7th Cir. 1998)). In other words, the plaintiff must have a protected property interest in that which he claims to have been denied without due process. See Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 538, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985).

Ascertaining "whether a particular job action against a public employee implicates a constitutionally protected property interest is a question of law; `[p]roperty interests are not created by the Constitution, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law.'" Deen v. Darosa, 414 F.3d 731, 734 (7th Cir.2005) (quoting Loudermill, 470 U.S. at 538, 105 S.Ct. 1487). Those property interests may also be created by contract with a state entity. Ulichny v. Merton Cmty. Sch. Dist., 249 F.3d 686, 700 (7th Cir.2001). "A mere opportunity to acquire property, however, does not itself qualify as a property interest protected by the Constitution." Head v. Chicago Sch. Reform Bd. of Tr., 225 F.3d 794, 802 (7th Cir.2000) (citations omitted). Losing the opportunity to acquire property does not constitute a deprivation. Kyle v. Morton High Sch., 144 F.3d 448, 452 (7th Cir.1998). Conversely, "[p]eople have a legitimate claim of entitlement to keep that which presently securely belongs to them. Where state law gives people a benefit and creates a system of nondiscretionary rules governing revocation or renewal of that benefit, the recipients have a secure and durable property right, a legitimate claim of entitlement." Cornelius v. LaCroix, 838 F.2d 207, 210 (7th Cir.1988).

Further, "to recover for a deprivation of a property interest, [a plaintiff] must show some economic loss from the [state's] action, or at least an identifiable impact on his future income or economic benefits." Bordelon v. Chicago Sch. Reform Bd. of Tr., 233 F.3d 524, 530 (7th Cir.2000). Purely dignitary and non-pecuniary interests, such as professional satisfaction, personal relationships, and reputation, do not constitute property. Id. "[A] job action that causes no pecuniary loss whatsoever does not implicate the Constitution." Deen, 414 F.3d at 734 (citations omitted). See also Swick v. City of Chicago, 11 F.3d 85, 87 (7th Cir.1993).

The first step of the due process analysis requires us to consider initially whether Barrows had property interests in his backup position and leave time, and secondarily whether he suffered economic harm from a property deprivation. As the parties seem to agree that Barrows had a right to assume his backup position, the question is at what point the University was obligated to place him in that position. The University of Wisconsin System Unclassified Personnel Guidelines § 3.02 provides that "[s]hould a limited appointee with a faculty or academic staff backup appointment be terminated from the limited position, the appointee has no minimum notice rights. However, the appointee has the right to assume the backup position without separation in service." The Guidelines do not define what constitutes "separation in service." Section 3.02 also provides that if a limited appointee resigns from the limited appointment and requests to return to his permanent appointment, "[s]uch requests should be honored as soon as possible by the authorized official. However, in the event a position is not readily available, or with the agreement of the limited appointee the authorized official may place the limited appointee on leave of absence until a vacancy becomes available." Id.

While it is clear that Barrows had a right to assume his backup position, that right was not "immediate," as he has characterized it, but only "without separation in...