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

• Court: U.S. Court of Appeals — Seventh Circuit
• Writing for the Court: Hamilton, Circuit Judge.
• Citation: Carmody v. Bd. of Trs. of the Univ. of Ill., 893 F.3d 397 (7th Cir. 2018)
• Decision Date: 19 June 2018
• Docket Number: No. 16-1335,16-1335
• Parties: Kevin R. CARMODY, Plaintiff-Appellant, v. BOARD OF TRUSTEES OF the UNIVERSITY OF ILLINOIS, et al., Defendants-Appellees.

893 F.3d 397

Kevin R. CARMODY, Plaintiff-Appellant,

v.BOARD OF TRUSTEES OF the UNIVERSITY OF ILLINOIS, et al., Defendants-Appellees.

No. 16-1335

United States Court of Appeals, Seventh Circuit.

Argued September 28, 2017

Decided June 19, 2018

Stuart Polizzi, Attorney, Naperville, IL, for Plaintiff-Appellant.

William James Brinkmann, Philip J. Pence, Kenneth D. Reifsteck, Attorneys, THOMAS, MAMER & HAUGHEY LLP, Champaign, IL, for Defendants-Appellees.

Before Bauer, Manion, and Hamilton, Circuit Judges.

Hamilton, Circuit Judge.

The University of Illinois fired plaintiff Kevin Carmody from his job as an information technology manager after printed copies of a professor's privileged emails suspiciously ended up in Carmody's home newspaper box. The emails allegedly exposed inconsistencies in the professor's testimony in a separate lawsuit that Carmody was pursuing against a different professor. The university learned about the mysterious delivery because Carmody's lawyer in the lawsuit filed the emails with the court. After finding that it was "more probable than not" that Carmody improperly obtained the emails himself, the university fired him. Carmody sued the university's board of trustees and several university officials alleging that he was fired without due process of law both before and after his firing, and that his firing violated an Illinois whistleblower statute. The district court dismissed the case at the motion to dismiss stage.

In an earlier appeal, we held that Carmody had pleaded a plausible claim that he was fired without pre-termination due process of law, but that his decision to withdraw from the post-termination hearing foreclosed his due process claim based on the post-termination procedures. Carmody v. Board of Trustees of University of Illinois (Carmody I ), 747 F.3d 470 (7th Cir. 2014). We also affirmed dismissal of the state-law claim. On remand, the district court granted summary judgment for some defendants, Carmody v. Board of Trustees of University of Illinois (Carmody II ), No. 12-CV-2249, 2015 WL 13675382 (C.D. Ill. Nov. 17, 2015), and Carmody lost at trial on his claim against three remaining defendants for denial of due process of law before he was fired. In this new appeal, Carmody raises seven issues—four regarding summary judgment and three pre-trial evidentiary issues. He does not challenge the conduct of the trial or the verdict on the pre-termination due process claim. We find no error and affirm the judgment of the district court.

I. Summary Judgment Issues

The district court granted summary judgment for four individual defendants and the board of trustees. Carmody II , 2015 WL 13675382, at *10. We review summary judgment rulings de novo , construing the evidence in the light most favorable to Carmody as the non-moving party and drawing all reasonable inferences in his favor. See Estate of Simpson v. Gorbett , 863 F.3d 740, 745 (7th Cir. 2017), citing Petties v. Carter , 836 F.3d 722, 727 (7th Cir. 2016). Nevertheless, inferences "that are supported by only speculation or conjecture will not defeat a summary judgment motion." Design Basics, LLC v. Lexington Homes, Inc. , 858 F.3d 1093, 1099 (7th Cir. 2017), quoting Herzog v. Graphic Packaging Int'l, Inc. , 742 F.3d 802, 806 (7th Cir. 2014). Summary judgment is proper "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). "A genuine issue of material fact exists when ‘the evidence is such that a reasonable jury could return a verdict for the nonmoving party.’ " Estate of Simpson , 863 F.3d at 745, quoting Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

A. Summary Judgment for Pang and Adesida

The district court granted summary judgment in favor of Carmody's immediate supervisor, Jong Shi-Pang, and the dean of the college where Carmody worked, Ilesanmi Adesida, because there was no evidence that those defendants were personally involved in the alleged pre-termination violation of Carmody's due process rights. Carmody II , 2015 WL 13675382, at *7–8. "Individual liability pursuant to § 1983 ‘requires personal involvement in the alleged constitutional deprivation.’ " Estate of Perry v. Wenzel , 872 F.3d 439, 459 (7th Cir. 2017), quoting Colbert v. City of Chicago , 851 F.3d 649, 657 (7th Cir. 2017). "The plaintiff must demonstrate a causal connection between (1) the sued officials and (2) the alleged misconduct." Colbert , 851 F.3d at 657, citing Wolf-Lillie v. Sonquist , 699 F.2d 864, 869 (7th Cir. 1983).

Carmody argues that Pang contributed to his dismissal by providing false evidence to university investigators. According to investigators' notes from their interview with Pang, Carmody did not tell Pang about possessing the emails. But Carmody testified that he did tell Pang about the emails. Carmody argues that the conflicting evidence matters because the university terminated him based, at least in part, on an alleged failure to inform his supervisor of a breach of network security.

This factual dispute does not affect Carmody's constitutional claim for denial of due process before he was fired. The question on Pang's summary judgment motion is whether Pang violated Carmody's constitutional rights. Pang made his statement to investigators as a witness. As a witness, he had no responsibility for the critical components of due process: whether Carmody received notice of the charges, an explanation of the evidence, and a chance to present his story before he was fired. See Carmody I , 747 F.3d at 475, citing Cleveland Board of Educ. v. Loudermill , 470 U.S. 532, 546, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985). Because Carmody does not point to any evidence that Pang participated in the alleged denial of pre-termination due process, the district court properly granted summary judgment for Pang. See, e.g., Estate of Perry , 872 F.3d at 459 (affirming summary judgment for defendants where § 1983 plaintiff failed to show personal involvement); see also Schultz v. Baumgart , 738 F.2d 231, 239 (7th Cir. 1984) (affirming summary judgment for some individual defendants because "the claimed deprivation could not have occurred at their direction or with their express consent"), citing Crowder v. Lash , 687 F.2d 996, 1006 (7th Cir. 1982).

Dean Adesida signed the pre-termination letter that outlined the charges against Carmody. Carmody argues that summary judgment for Adesida was improper because "additional evidence" indicates that Adesida was involved in the investigation. But Carmody supports that argument by relying on documents that were not before the district court. Most of Carmody's appellate appendix consists of documents obtained outside of discovery. We will not consider those documents on appeal because Federal Rule of Appellate Procedure 10(e) provides no basis for doing so. See Fed. R. App. P. 10(e)(2) (allowing court of appeals to supplement record only where evidence "is omitted from or misstated in the record by error or accident"); Midwest Fence Corp. v. United States Dep't of Transp. , 840 F.3d 932, 946 (7th Cir. 2016) (" Rule 10(e) does not give this court authority to admit on appeal any document which was not made a part of the record in the district court."), quoting Borden, Inc. v. Federal Trade Comm'n , 495 F.2d 785, 788 (7th Cir. 1974) ; see also Hart v. Sheahan , 396 F.3d 887, 894 (7th Cir. 2005) ("To present new evidence at the appeal stage is improper and in appropriate cases sanctionable."), citing Youker v. Schoenenberger , 22 F.3d 163, 169 (7th Cir. 1994).

The evidence that is actually in the record supports the grant of summary judgment. Adesida testified that he accepted the content of the letter as true, did not think he needed to confirm the truth of the facts because there would be an investigation, and had no input on how that investigation would be conducted. On this record, Adesida could not be held individually responsible for a pre-termination denial of due process of law.

B. Summary Judgment for Hogan and Cole

Summary judgment was also appropriate for defendants Michael Hogan, the president of the university when Carmody was fired, and Elyne Cole, the associate provost who supervised the investigators. Carmody points to no evidence that either official was personally involved in his termination, but relies instead on conjecture. He argues that Hogan must have known about the termination. But Carmody did not dispute that Hogan had no knowledge of the charges against Carmody until this lawsuit was filed.

As for Cole, Carmody argues that she supervised the investigators and that the termination proceedings likely required her approval. Without more evidence of her involvement, this argument amounts to an argument for respondeat superior liability, but that doctrine does not apply under § 1983. E.g., Lennon v. City of Carmel , 865 F.3d 503, 507–08 (7th Cir. 2017) ("there is no vicarious liability in a suit under section 1983"); see also Gill v. City of Milwaukee , 850 F.3d 335, 344 (7th Cir. 2017) (supervisory liability requires showing "supervisor was personally involved in the constitutional violation," which "means the supervisor ‘must know about the conduct and facilitate it, approve it, condone it, or turn a blind eye for fear of what [he] might see.’ " (alteration in original), quoting Matthews v. City of East St. Louis , 675 F.3d 703, 708 (7th Cir. 2012) ).

C. Summary Judgment for the Board of Trustees

Summary judgment for the board of trustees as an entity was also proper. The Eleventh Amendment to the Constitution bars the claims against the board itself, and § 1983 does not authorize such claims. The Eleventh Amendment bars most claims in federal court against a state that does not consent to the suit. E.g., Porco v. Trustees of Indiana University , 453 F.3d 390, 394–95 (7th Cir. 2006), citing Edelman v. Jordan , 415 U.S. 651, 663, 94 S.Ct. 1347, 39 L.Ed.2d...