Carmody v. Bd. of Trs. of the Univ. of Ill.

Decision Date28 March 2014
Docket NumberNo. 13–2302.,13–2302.
Citation747 F.3d 470
PartiesKevin R. CARMODY, Plaintiff–Appellant, v. BOARD OF TRUSTEES OF the UNIVERSITY OF ILLINOIS, et al., Defendants–Appellees.
CourtU.S. Court of Appeals — Seventh Circuit


Michael John Tague, Flynn, Palmer, Tague, Lyke & Jacobson, Champaign, IL, for PlaintiffAppellant.

William James Brinkmann, Thomas, Mamer & Haughey LLP Champaign, IL, for DefendantsAppellees.

Before POSNER, MANION, and HAMILTON, Circuit Judges.

HAMILTON, Circuit Judge.

Plaintiff Kevin Carmody worked for the University of Illinois for 25 years until he was fired for reasons involving a security breach of the university's email system. After unsuccessfully appealing his discharge, Carmody filed this suit against the university's board of trustees and several university officials claiming that they violated his rights under the Due Process Clause of the Fourteenth Amendment and under an Illinois statute designed to protect whistle-blowers. The district court dismissed Carmody's complaint with prejudice under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted. Carmody has appealed.

We review de novo a district court's grant of a motion to dismiss, construing the complaint in the plaintiff's favor. Sung Park v. Indiana Univ. School of Dentistry, 692 F.3d 828, 830 (7th Cir.2012). While we take the facts alleged in the complaint to be true, we also consider attached exhibits and take into account any contradictions. Phillips v. Prudential Ins. Co. of America, 714 F.3d 1017, 1019–20 (7th Cir.2013). For a case at the pleading stage, we have here an unusually detailed record of events because the complaint includes numerous exhibits regarding Carmody's termination.

We conclude that the district court's dismissal was premature with respect to one aspect of Carmody's due process claim: that he was not given an adequate pre-termination hearing. Carmody has plausibly alleged that his pre-termination opportunity to be heard was meaningless because he could not answer the university's crucial questions or respond to its accusations without violating a state court order that required him not to discuss the key subject. The university acted to fire Carmody on the same day the state court modified its order to allow him to respond to the charges, so the modification came too late to help him. Also, Carmody has alleged that he was actually fired based in part on a charge for which he had no prior notice and opportunity to be heard. We therefore reverse this one portion of the district court's judgment and remand the case for further proceedings. We affirm the judgment in all other respects.

I. Sufficiency of the Pre–Termination ProcessA. Factual Allegations

For the last 22 years of Carmody's employment with the University of Illinois, he was manager of systems services in the Department of Industrial and Enterprise Systems Engineering. According to Carmody's complaint and numerous attached exhibits, the university's official reasons for firing him involved a security breach of the university's email system, a breach connected to a state court lawsuit Carmody was then pursuing against a university professor, David Goldberg.

Carmody says that while his lawsuit against Professor Goldberg was pending, he discovered several printed emails in the newspaper box outside his home. The emails contradicted an affidavit that Professor Goldberg's defense attorney had filed in the case, an affidavit by another professor, Deborah Thurston. Carmody gave the emails to his lawyer, who then filed a motion of some kind to which he attached the emails, designating them “Group Exhibit A.” Carmody denies knowing how the emails came to be in his newspaper box. (Carmody's claim in his lawsuit against Goldberg was apparently that the professor had assaulted him, though the nature of the claim is irrelevant to Carmody's firing and the case before us. Carmody's suit against Goldberg has since been dismissed.)

The emails Carmody found were between university employees, including Professor Thurston, and all of them concerned Professor Goldberg. According to Carmody's federal complaint, the state court judge ordered as follows regarding the emails:

[T]he Court is going to order that Group Exhibit A [the Thurston emails] be placed under seal pending litigation of any further claims of privilege or relevance, and the Court is further going to enter a protective order on the parties that there is to be no secondary dissemination of any of the contents of Group Exhibit A as the court has described them, beyond the respective litigation files of the three lawyers here.

(Emphasis added.) The three lawyers were Carmody's lawyer, Goldberg's lawyer, and a lawyer for Thurston. Both professors' lawyers were provided by the university.

Carmody then received a pre-termination letter dated July 19, 2010. It explained that he was being investigated for misconduct, that he was suspended with pay immediately, and that if the charges spelled out in the letter were substantiated, they could result in discipline up to and including immediate termination of employment. As far as the substance of the charges went, the letter said:

It is alleged that you attempted to use the substance of the email messages for non-University related purposes and without permission. Furthermore, there are open questions regarding how you came to be in possession of these documents, specifically whether you obtained them through improper access.

The July 19 letter went on to say that Carmody would have an opportunity to respond to the charges at a meeting later that month.

On July 28th, university officials held a pre-termination meeting with Carmody, who brought his lawyer, Robert Kirchner. At that meeting, Carmody alleges, the university officials said they intended to question him about the contents of the emails in Group Exhibit A. Keeping in mind that we are reviewing a Rule 12(b)(6) dismissal, we must give Carmody the benefit of conflicting information and allegations about what happened in the meeting. We therefore assume that university officials intended to question Carmody about the contents of the emails, as well as how he received them, and that both subjects were important to the pending decision about what action to take against Carmody.

Carmody's lawyer summarized his version of the meeting in an August 3 letter to counsel for the university:

This letter will summarize the meeting of July 28th, in which you were a participant. [Two university officials] had advised, and you then confirmed that they were in possession of a copy of a document ordered sealed by Judge Leonard and that you, and they, intended to question Kevin Carmody about the contents of, and substance contained in, that document. I advised that I would not permit Mr. Carmody to violate Judge Leonard's order by discussing or disclosing the contents of the sealed materials and that by insisting that he do so, University personnel would be acting in violation of the order as well. You disagreed and advised that the “University is not a party to that case.” We adjourned the meeting with an agreement that I would send this letter to you, await your reply and then seek direction from the Court. I will await your reply.

The university's counsel wrote in response:

You are correct in that the University has copies of “Exhibit A,” which consist of University documents. The University is now investigating whether or not any University policies have been violated and/or security measures breached in the acquisition or use of those documents. [University officials] attempted to ask your client questions about the documents in his possession, which he declined to answer because of your interpretation of the Judge's ruling.

I advised that I did not interpret the Judge's ruling as you did. It is my understanding that the Judge sealed the documents ... because of the concerns with how the documents were obtained.... I do not believe it was the intent of the Judge to prevent the University from using its documents as necessary in order to determine if there has been a breach of University security and/or a breach of trust and responsibility of any University employees....

I would be happy to join you in a motion for clarification of the judge's order if you feel that is necessary. In the meantime, the University will proceed with its investigation. If your client reconsiders participating in this process, please let me know. Otherwise, his refusal to participate may be considered in the investigation.

Attorney Kirchner began efforts to modify the state court order to allow Carmody to respond to the university's accusations and threat of termination. The record does not reflect whether he took the university's lawyer up on her offer to join him in a motion for clarification, though the court modified its order about two months later, on the same day that Carmody was fired.

The investigation was conducted by the university's Academic Human Resources department and was completed in early September 2010. The investigators submitteda report on September 7 to university officials. They recommended that Carmody's employment be terminated. The report explained that, regardless of how Carmody had obtained the emails in Group Exhibit A, he did not immediately report the breach of security” that must have been perpetrated. Carmody also had “attempted to use the substance of the email messages ... for non-University purposes and without permission,” and it was “more probable than not that Mr. Carmody obtained the documents in ‘Group Exhibit A’ through improper access.”

On September 9, attorney Kirchner sent a letter to two university lawyers regarding the September 7 report. He contended that the recommendation to fire his client was based in part on a new charge: that Carmody had failed to report a security breach upon receiving the emails....

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