Burrell v. City of Mattoon

• Decision Date: 06 August 2004
• Docket Number: No. 03-3930.,03-3930.
• Citation: 378 F.3d 642
• Parties: William D. BURRELL, Plaintiff-Appellant, v. CITY OF MATTOON; David Carter, Mayor of the City of Mattoon; Harold D. Gambill, Mark Donnell, Jerrold Hesse, and David R. Schilling, City Council Members of the City of Mattoon, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

378 F.3d 642

William D. BURRELL, Plaintiff-Appellant, v. CITY OF MATTOON; David Carter, Mayor of the City of Mattoon; Harold D. Gambill, Mark Donnell, Jerrold Hesse, and David R. Schilling, City Council Members of the City of Mattoon, Defendants-Appellees.

No. 03-3930.

United States Court of Appeals, Seventh Circuit.

Argued May 18, 2004.

Decided August 6, 2004.

COPYRIGHT MATERIAL OMITTED

Appeal from the United States District Court for the Central District of Illinois, Harold Albert Baker, J.

Robert I. Auler (argued), Urbana, IL, for Plaintiff-Appellant.

Stanley L. Morris (argued), Quinn, Johnston, Henderson & Pretorius, Springfield, IL, for Defendants-Appellees.

Before FLAUM, Chief Judge, and KANNE and ROVNER, Circuit Judges.

KANNE, Circuit Judge.

William D. Burrell served as the city clerk for Mattoon, Illinois from July 1994 until April 30, 2001, when he was allegedly terminated from the position by the newly elected mayor and incoming city council. The new mayor and city council had not taken office at the time of Burrell's alleged firing; yet, Burrell sued the City, the mayor-elect, and incoming city council members in federal court, claiming that they deprived him of his job without due process of law in violation of 42 U.S.C. § 1983. The district court granted summary judgment in favor of the defendants on Burrell's § 1983 claim and on his supplemental state law claims. We affirm.

I. History

The mayor of Mattoon, with the city council's approval, appoints the city clerk. See 65 Ill. Comp. Stat. 5/3.1-30-5(a)(11) (vesting power in a municipality's mayor, with the advice and consent of the city council, to appoint "officers necessary to carry into effect the powers conferred upon municipalities"). The appointment is for a fixed term, "but the term of office... shall not exceed that of the mayor...." 65 Ill. Comp. Stat. 5/3.1-30-5(c). According to Mattoon city ordinance, the city clerk is not only an officer, but is also an employee of the city, and as such is subject to the City of Mattoon Personnel Code. The City of Mattoon Personnel Code requires that city employees be subject to progressive discipline prior to termination.¹

The City of Mattoon municipal elections held in April 2001 resulted in a complete turnover in all city council seats and the office of mayor. Although the new mayor and city council members were sworn in sometime after the election in a private ceremony, city ordinance dictated that they did not officially begin their terms in office until their inauguration, which would take place at the first regular or special meeting of the city council in the month of May following the general election. Concomitantly, the outgoing mayor's and city council members' terms would end upon their successors' inauguration at the May meeting. It is undisputed that the first regular or special meeting of the city council in the month of May after the general election took place the evening of May 1, 2001, whereupon the incoming mayor and city council began their terms in office immediately after their inauguration and the outgoing officials' terms ended.

Burrell had been appointed to his position by the outgoing mayor, Wanda Ferguson. According to statute, his term in office coterminated with hers on May 1, 2001. It was anticipated that Burrell would be reappointed to his city clerk position by the incoming mayor and city council, and a resolution to that effect had been prepared for presentation at the May 1, 2001 city council meeting. To Burrell's great shock and consternation, on April 30, 2001, the mayor-elect, David Carter, and the incoming council members, Harold D. Gambill, Mark Donnell, Jerrold Hesse and David R. Schilling (collectively, the "individual defendants"), met with Burrell and told him that he would not be reappointed to the city clerk position the following evening because of perceived performance problems. It is undisputed that prior to this conference with the incoming officials, Burrell had not received any warnings or other progressive discipline indicating that his performance was deficient. Immediately after the meeting, Burrell told co-workers he had been fired, turned in his keys and cell phone, and left the building. True to their word, the individual defendants appointed Burrell's assistant, Susan O'Brien, as city clerk at the May 1, 2001 meeting, in place of Burrell.

Burrell does not claim that he was entitled to reappointment to the city clerk position on May 1, 2001. He does claim that he was entitled to serve out the remainder of his term, that is, until the incoming mayor and city council were inaugurated on May 1, 2001. He argues that the City and individual defendants terminated him on April 30, 2001 without following the progressive discipline procedure required by the City of Mattoon Personnel Code. Because he was forced out of office one day prematurely, he claims, among other damages, that he was unable to convert his pension, resulting in hundreds of thousands of dollars of loss.²

Burrell filed his suit in federal district court against the City and the individual defendants alleging, under 42 U.S.C. § 1983, that they violated the federal constitution by depriving him of his job without due process of law. He also brought supplemental state law claims for violation of Illinois's Open Meetings Act, 5 Ill. Comp. Stat. 120 et seq.; for breach of contract; for interference with a prospective contractual relationship and/or with a prospective economic advantage; and for conspiracy relating to all of the above. The district court dismissed Burrell's claim based on the Open Meetings Act and the portions of the conspiracy count relating to the alleged Open Meetings Act violation. Burrell does not appeal that ruling.

The court subsequently dismissed the remainder of Burrell's claims upon the defendants' motion for summary judgment. The judge found that Burrell, who rested entirely on his pleadings as to key disputed facts, failed to advance any evidence tending to show that the City or individual defendants prevented him from serving out the remainder of his term. Because Burrell could not support his contention that he suffered any actual deprivation of a constitutional right — that is, the loss of his job without due process — the judge granted summary judgment on the § 1983 claim. Relatedly, the court determined Burrell could not establish a breach of contract because nothing the defendants said or did prevented Burrell from working his last day in office. The judge also quickly dispatched Burrell's claims of tortious interference with a prospective contractual relationship and/or tortious interference with a prospective economic advantage for failure to meet necessary elements under Illinois law. Finally, because all of the claims upon which the conspiracy count was predicated failed, the judge dismissed the conspiracy count as well.

II. Analysis

We review the district court's grant of summary judgment de novo, construing all facts in favor of the non-moving party. Smith v. Dunn, 368 F.3d 705, 708 (7th Cir.2004). Summary judgment is appropriate where "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." Fed.R.Civ.P. 56(c).

We note, as did the district judge, that where the party seeking summary judgment has supported its recitation of facts with citations to depositions and other record materials, "an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e); see also Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ("Rule 56(e) permits a proper summary judgment motion to be opposed by any of the kinds of evidentiary materials listed in Rule 56(c) [depositions, answers to interrogatories, admissions on file, and affidavits], except the mere pleadings themselves...." (emphasis added)).

A. 42 U.S.C. § 1983

Section 1983 provides:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State ... subjects, or causes to be subjected, any citizen of the United States ... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress....

42 U.S.C. § 1983. The two key elements establishing a violation of § 1983 are (1) a deprivation of a federally guaranteed right, (2) perpetrated under color of state law. Id.; see also Adickes v. S.H. Kress & Co., 398 U.S. 144, 150, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); Honaker v. Smith, 256 F.3d 477, 484 (7th Cir.2001).

1. Deprivation of a federally guaranteed right

The district judge determined that none of the defendants deprived Burrell of a federally guaranteed right, and we agree. Burrell alleged that the defendants deprived him of his right to due process, in the form of progressive discipline required by the City of Mattoon Personnel Code, prior to losing his job as city clerk. "[T]he existence of a property interest in public employment cognizable under the due process clause depends on whether state law has affirmatively created an expectation that a particular employment relationship will continue unless certain defined events occur." Confederation of Police v. City of Chicago, 547 F.2d 375, 376 (7th Cir.1977), quoted in Hudson v. City of Chicago, 374 F.3d 554, 559 (7th Cir.2004). We conclude, as did the district judge, that Burrell had a property interest in completing his appointment as city clerk, which could only be taken away prior to the expiration of the mayor's...