Wallace v. Tilley

• Citation: 41 F.3d 296
• Decision Date: 28 November 1994
• Docket Number: No. 94-1914,94-1914
• Parties: 147 L.R.R.M. (BNA) 2969, 30 Fed.R.Serv.3d 1317 John WALLACE, Plaintiff-Appellant, v. Steven TILLEY, Town of Beloit, Russell Paschke, James Olson, Doris Forbes, and Ronald Cooke, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 296

41 F.3d 296

147 L.R.R.M. (BNA) 2969, 30 Fed.R.Serv.3d 1317

John WALLACE, Plaintiff-Appellant, v. Steven TILLEY, Town of Beloit, Russell Paschke, James Olson Doris Forbes, and Ronald Cooke, Defendants-Appellees.

No. 94-1914.

United States Court of Appeals Seventh Circuit.

Argued Oct. 7, 1994.

Decided Nov. 28, 1994.

Willie J. Nunnery (argued), Madison, WI, for plaintiff-appellant.

Michael J. Cieslewicz (argued), Kevin A. Christensen, Kasdorf, Lewis & Swietlik, Milwaukee, WI, for Steven Tilley, Russell Paschke, James Olson, Doris Forbes, Ronald Cooke.

Kevin A. Christensen, Kasdorf, Lewis & Swietlik, Milwaukee, WI, Kenneth Forbeck, Forbeck & Monahan, Beloit, WI, for Town of Beloit.

Before CUMMINGS, FLAUM, and RIPPLE, Circuit Judges.

FLAUM, Circuit Judge.

The plaintiff, John Wallace ("Wallace"), is now, and at the time of the alleged constitutional violations was, a police officer in the Town of Beloit, Wisconsin. As an officer, he belonged to Teamsters Local Union Number 579, which had a Collective Bargaining Agreement with the Beloit Police Department.

On or about June 1, 1992, Wallace was dispatched to investigate a theft at the home of Dorothy Mae Goodenough ("Goodenough"), a seventy-eight year old resident of Beloit. While investigating the theft, Wallace came to believe that Goodenough needed assistance with her financial affairs. In response to a request from Goodenough, Wallace returned to her house the following day while off-duty and escorted Goodenough to her bank to check on her finances. After meeting with bank officials and examining her accounts, Wallace and Goodenough had lunch and returned to her residence. They then called attorney William Hayes ("Hayes") and set an appointment for June 4 to discuss Goodenough's financial and legal affairs. At the June 4 meeting, Wallace, Goodenough and Hayes discussed these personal and financial matters. Wallace apparently did not report any of these events to any Police Department official.

On June 5, 1992, Police Chief Steven Tilley ("Tilley") contacted Wallace and asked him to file a report on his contacts with Goodenough. Wallace filed this report on June 6. At approximately the same time, Tilley contacted the Rock County Sheriff's Department and requested a criminal investigation into Wallace's actions. Lieutenant Arthur LeFeber ("LeFeber") conducted the investigation and issued a report, later approved by Rock County Sheriff Joseph Black ("Black").

After receiving this report, Tilley discussed the Goodenough matter with James Olson ("Olson") and Town Supervisor Charles Ankrum ("Ankrum"). ¹ Prior to Wallace's receiving formal notice of any disciplinary action, Tilley, Ankrum and Olson informally agreed that Wallace should be terminated. On June 18, Wallace received notice of his suspension with pay. The suspension letter also informed Wallace that a hearing relating to the matter was set for June 24, 1992. On June 23, 1992, Wallace was served with an official Notice of Disciplinary Proceedings, outlining the charges against him and setting the meeting time for 8:00 a.m. the following day.

The June 24 meeting was held before the Beloit Town Board ("Board"), which included the defendants Russell Paschke ("Paschke"), Doris Forbes ("Forbes"), Ronald Cooke ("Cooke"), Olson and Ankrum. Wallace attended the meeting with teamsters union representative Brendan Kaiser ("Kaiser") and Town of Beloit Police Department union representative James Driscoll ("Driscoll"). At the meeting, Tilley recommended terminating Wallace for his involvement with Goodenough. ² Upon conclusion of the hearing, the Board unanimously voted to discharge Wallace.

Wallace immediately filed a grievance with the union pursuant to Article 5 of the Collective Bargaining Agreement. Prior to any arbitration on this matter, the union, on Wallace's behalf, and the Town settled the grievance, resulting in Wallace's reinstatement with full seniority, benefits and lost wages (except for two months pay). ³ The settlement also expunged any reference to his dismissal from Wallace's employment record.

On May 28, 1993, Wallace filed this action in the United States District Court for the Western District of Wisconsin pursuant to 42 U.S.C. Sec. 1983, alleging deprivations of liberty and property without due process of law. The defendants moved for summary judgment. On March 10, 1994, the Magistrate Judge, in his Report and Recommendations, advised that the court should grant the defendants' motion for summary judgment in all respects as to all defendants. On March 29, 1994, the district court adopted the Magistrate's Report and Recommendations and granted summary judgment for all defendants. This appeal follows.

I.

We review a district court's grant of summary judgment de novo. Vukadinovich v. Bd. of School Trustees of Mich., 978 F.2d 403, 408 (7th Cir.1992), cert. denied, --- U.S. ----, 114 S.Ct. 133, 126 L.Ed.2d 97 (1993); Karazanos v. Navistar International Transportation Corp., 948 F.2d 332, 334 (7th Cir.1991). We review the record and all reasonable inferences which can be drawn from it in the light most favorable to the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 2513, 91 L.Ed.2d 202 (1986); Forbes v. Trigg, 976 F.2d 308 (7th Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 1362, 122 L.Ed.2d 741 (1993). 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); see Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986); Condo v. Sysco Corp., 1 F.3d 599, 601 (7th Cir.1993), cert. denied, --- U.S. ----, 114 S.Ct. 1051, 127 L.Ed.2d 373 (1994).

Wallace first claims that the Board's hearing deprived him of both liberty and property interests without due process of law. He argues that the procedures used by the Board did not comport with procedural due process requirements. Wallace contends that the Board's actions deprived him of a liberty interest due to the damage to his reputation resulting from negative publicity arising out of his termination. He asserts that between the time he was terminated on June 24, 1992, and his subsequent reinstatement, he suffered stigmatization, embarrassment and defamation. Wallace specifically points to several newspaper articles which may have cast his actions in a negative light, and claims that these articles directly affected his candidacy for Sheriff. Wallace also argues that the Board's actions deprived him of his property interest in his job as a police officer without due process of law.

In examining these claims, we first must determine whether there was a deprivation of a protected interest. If so, we then decide whether the procedures surrounding the deprivation were constitutionally sufficient. Forbes v. Trigg, 976 F.2d at 315. When the government terminates a public employee and makes false or substantially inaccurate public charges or statements that stigmatize the employee, the employee's liberty interests are implicated. McMath v. City of Gary, 976 F.2d 1026, 1031-32 (7th Cir.1992). Therefore, we assume, arguendo, that Wallace had a constitutionally protected liberty interest. The defendants also do not contest Wallace's property interest in his job in that he was a nonprobationary unionized employee whose employment relationship with the Town was governed by the union's collective bargaining agreement. We thus also assume, arguendo, that Wallace was deprived of a property interest.

The mere deprivation by state action of a constitutionally protected interest is not in itself unconstitutional. What is unconstitutional is the deprivation of such an interest without due process of law. "The Due Process Clause 'is not a guarantee against incorrect or ill-advised personnel decisions.' " Collins v. City of Harker Heights, --- U.S. ----, ----, 112 S.Ct. 1061, 1070, 117 L.Ed.2d 261 (1992) (quoting Bishop v. Wood, 426 U.S. 341, 350, 96 S.Ct. 2074, 2080, 48 L.Ed.2d 684 (1976)); see also Vukadinovich, 978 F.2d at 410. For this reason we focus our inquiry on whether Wallace received adequate due process.

Wallace argues that the Board's procedures were insufficient because he did not receive adequate notice of the hearing, did not have an attorney present at the hearing, and did not have an impartial decision maker. The Supreme Court has held in similar contexts that due process requires both some form of hearing and adequate notice of that hearing. See Zinermon v. Burch, 494 U.S. 113, 125, 110 S.Ct. 975, 983, 108 L.Ed.2d 100 (1990); Board of Regents of States Colleges, et al. v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972); Wisconsin v. Constantineau, 400 U.S. 433, 437, 91 S.Ct. 507, 510, 27 L.Ed.2d 515 (1971) ("where a person's good name, reputation, honor or integrity is at stake because of what the government is doing to him, notice and an opportunity to be heard are essential"); Vukadinovich, 978 F.2d at 410. Due process does not mandate a full evidentiary hearing for all property interests prior to their deprivation. ⁴ See Brock v. Roadway Express, Inc., 481 U.S. 252, 261-62, 107 S.Ct. 1740, 1747-48, 95 L.Ed.2d 239 (1987); Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 545, 105 S.Ct. 1487, 1495, 84 L.Ed.2d 494 (1985); Buttitta, 9 F.3d at 1206; Smith v. Town of Eaton, 910 F.2d 1469, 1472 (7th Cir.1990), cert. denied, 499 U.S. 962, 111 S.Ct. 1587, 113 L.Ed.2d 651 (1991). Due process is a flexible concept whose procedures depend on the particular circumstances of each case, see Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484 (1972); Buttitta v. City of Chicago, 9 F.3d 1198, 1206 (7th Cir.1993), and "requires notice of charges and an opportunity for a hearing...