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 Aug. 6, 2004.
378 F.3d 642
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
I. History
The mayor of Mattoon, with the city council‘s approval, appoints the city clerk. See
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 coworkers 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
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
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.”
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.”
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 ac
tion at law, suit in equity, or other proper proceeding for redress ....
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 term in office after appropriate progressive disciplinary steps were followed. Whether Burrell‘s job was taken away without this due process hinges on whether the defendants terminated his employment on April 30, 2001—forcing him from office a day early without implementing progressive discipline—or whether the defendants simply informed him he would not be reappointed, forcing him from office at the expiration of his appointed term, but not before. Only in the former scenario could Burrell complain of deprivation of a federally guaranteed right.3
The evidence provided by the defendants in support of their summary judgment motion included Burrell‘s statement in paragraph 16 of his fifth amended complaint that mayor-elect Carter, in the presence of the other individual defendants, “informed the Plaintiff that he would not be reappointed as City Clerk at the inaugural meeting of the new City Council to be held the following evening, May 1, 2001, citing ‘poor job performance’ as the reason for termination.” The evidence also included Carter‘s deposition testimony describing the meeting with Burrell. Carter stated that he and the council-elect met with Burrell the day prior to their inauguration to let him know ahead of time, as a courtesy, that he would not be reappointed at the May 1 meeting. Carter recounted that he did most of the talking and told Burrell the council had no plans to reappoint him at the meeting on May 1 because of his job performance. After the meeting concluded, Carter testified that Burrell went out into the hall and spoke with the current mayor, Ferguson. Mayor Ferguson then approached Carter and the other council members and questioned why they “fired” Burrell. Carter corrected her, stating that Burrell would not be reappointed (not fired), which was consistent with what he had communicated to Burrell.
The defendants also offered the testimony of Susan O‘Brien, Burrell‘s assistant and ultimate replacement. She testified that she saw Burrell after his meeting with the incoming council. He told her that he‘d been fired. She then met with the
Burrell responded to the above with the deposition testimony of David O‘Dell, former chief of police, who spoke with defendant council member Schilling about eight or nine months after Schilling had taken office on May 1, 2001. O‘Dell testified that Schilling stated that the council had “fired” Burrell, but provides no elaboration as to when or how the “firing” took place.4
From the above, we glean that on April 30, 2001 the incoming mayor and city council-elect told Burrell that he would not be reappointed at their inaugural meeting on May 1, 2001 because of performance problems. It‘s evident that Burrell and others, such as his replacement, O‘Brien, and even members of the incoming council, such as Schilling, equated the loss of the reappointment under these circumstances to a termination. But nothing in the evidence supplied by either party suggests that the termination was effective April 30, 2001, rather than May 1, 2001 upon the conclusion of Burrell‘s term and the appointment of his replacement. Based on the record, no rational trier of fact could conclude that the individual defendants, by informing Burrell he would be out of a job the following day upon the expiration of his term, prevented him from working out the remainder of his time in office. Burrell was not deprived of his job, thus no process was due; he suffered no constitutional deprivation at the hands of the individual defendants or the City.
We note, as did the district judge, that in opposing the summary judgment motion Burrell relied heavily on a statement made in his fifth amended complaint, which, if it had been supported by affidavits or deposition testimony, likely would have passed muster under
2. Under color of state law
In attempting to explain why he abandoned his position on April 30, 2001, rather than serving out his term, Burrell argued, without record support, to both the district court and to us, that he was “under considerable stress, confronted by the already sworn members of the new City Council (albeit acting ultra vires because the Old Council was still valid) and acted as any reasonable person would” in assuming that people with authority to fire him were doing so. Burrell‘s contention that the incoming mayor and council-elect had authority, prior to officially taking office, to terminate him on April 30, 2001, and that they did so with the City‘s blessing, leads us to the second element of the
For the individual defendants to act “under color of state law” for
It is undisputed that the individual defendants, though duly elected and sworn, were not yet in office because they had not been inaugurated as required by City ordinance. Hence, they were not yet “state actors.” Even if they intended to terminate Burrell on April 30, 2001, they had no power to do so. To the extent Burrell mistakenly believed they did, his erroneous interpretation of the events of April 30 does not convert the individual defendants’ private actions into ones perpetrated under color of state law. For example, in related contexts where plaintiffs claim they were promised employment by individuals whom they erroneously believed to be capable of securing the position, we have repeatedly refused to find
Burrell advances the alternative argument that even if the individual defendants were not state actors, they conspired with a state actor to deprive him of his job. See Cunningham v. Southlake Ctr. for Mental Health, Inc., 924 F.2d 106, 107 (7th Cir. 1991) (“When a private actor is implicated, the section 1983 plaintiff may nevertheless prevail if he shows sufficient state involvement in the action in question to trigger constitutional protections.“) (citing Nat‘l Collegiate Athletic Ass‘n v. Tarkanian, 488 U.S. 179, 192 (1988)). Under this “joint action” theory, “a private defendant acts under color of state law when he is ‘a willful participant in joint action with the State or its agents.‘” Id. (quoting Dennis v. Sparks, 449 U.S. 24, 27 (1980)). This means that Burrell needed to allege “some agreement between private and public actors” to violate his constitutional rights and show that “both public and private actors share a common, unconstitutional goal.” Id. Here, Burrell asserts that the individual defendants acted in concert with the city attorney, John Hefner, to violate his constitutional rights.
The record reveals that the incoming council, prior to their inauguration, met several times to discuss issues they would confront and changes they wished to make once in office. One change they agreed upon soon after they began meeting, according to the deposition testimony of defendant Schilling, was that Burrell would not be reappointed to the city clerk position. They shared this decision with Hefner, the city attorney, in a private meeting shortly before their inauguration. It is undisputed that Hefner tried to convince the incoming council to reconsider their decision; however, both Hefner and Schilling testified that the incoming council would not be swayed. Hefner then advised the council-elect about the possible legal implications of their decision not to reappoint Burrell.
As stated above, to survive summary judgment on the joint action theory, Burrell needed to show that the state actor, Hefner, and the individual defendants conspired together to deprive Burrell of his job without due process of law and that they were each in some part motivated by that same unconstitutional purpose. Cunningham, 924 F.2d at 107-08. Although it‘s true Hefner provided legal advice to the incoming council about their decision not to reappoint Burrell, there is no evidence that he advised them to “terminate” Burrell prior to the expiration of his term and without following the progressive discipline steps outlined in the City of Mattoon Personnel Code, or even knew that this was their plan, as Burrell alleges.6
And, the undisputed evidence shows that Hefner wanted Burrell to keep his job and tried to persuade the council to reappoint him. Hefner thus did not share in the individual defendants’ alleged unconstitutional purpose or enter into any agreement with them to violate Burrell‘s constitutional rights. In short, nothing Hefner said or did transfers the imprimatur of the state to the individual defendants’ choice to proceed as they did on April 30, 2001.
Burrell‘s
B. State law claims
Although the district court could have dismissed the supplemental state law claims without prejudice because it dismissed the
1. Breach of Contract
Burrell alleged that, in forcing him without warning from his appointed position a day early, the defendants breached the employment contract created by the City of Mattoon Personnel Code, which required progressive discipline prior to any termination. To prove breach of contract under Illinois law, Burrell must come forward with evidence of (1) the existence of a contract; (2) his performance under the contract; (3) the defendants’ breach; and (4) resulting injury from the breach. See Priebe v. Autobarn, Ltd., 240 F.3d 584, 587 (7th Cir. 2001) (citing Hickox v. Bell, 195 Ill.App.3d 976, 552 N.E.2d 1133, 1143 (1990)). Assuming that the City of Mattoon Personnel Code established an employment contract between Burrell and the City, see Duldulao v. St. Mary of Nazareth Hosp. Ctr., 115 Ill.2d 482, 505 N.E.2d 314, 318 (1987), Burrell simply cannot establish its breach.
First, as already discussed above, the defendants did not terminate Burrell on April 30, 2001—he was free to continue in his appointed position until the expiration of his term. Second, as already discussed above, even if the individual defendants did intend to terminate him, they were private citizens at the time acting without the imprimatur of the City, were thus not a party to the contract, and could not have breached it. The district judge properly granted summary judgment on the breach of contract claim.
2. Tortious interference with contractual relations and/or tortious interference with prospective economic advantage
Burrell also claimed that the individual defendants tortiously interfered with prospective contractual relations and/or tortiously interfered with a prospective economic advantage. Although he frames the contract tortious interference claim as relating to a prospective contractual relationship, it is evident from the body of the complaint and from his arguments both below and to us that what he seeks to recover for is interference with his employment contract with the City that should have ended with his term in office, not any future contractual relation.
To establish tortious interference with contractual relations under Illinois
Burrell‘s related tortious interference with a prospective economic advantage claim seeks to recover for his purported loss of the opportunity to convert his pension. The elements of such a cause of action are as follows: (1) the plaintiff‘s reasonable expectation of entering into a valid business relationship; (2) the defendants’ knowledge of plaintiff‘s expectancy; (3) purposeful interference by the defendants that prevents the plaintiff‘s legitimate expectancy from being fulfilled; and (4) damages to the plaintiff resulting from such interference. Delloma v. Consolidation Coal Co., 996 F.2d 168, 170-71 (7th Cir. 1993) (citing Fellhauer v. City of Geneva, 142 Ill.2d 495, 568 N.E.2d 870, 878 (1991)); see also Dowd & Dowd, Ltd. v. Gleason, 181 Ill.2d 460, 693 N.E.2d 358, 370 (1998). While we highly doubt that the opportunity to convert one‘s pension benefits corresponds to an expectation of entering into a valid business relationship, we easily conclude that the defendants in no way “purposefully interfered” with Burrell‘s pension benefit conversion rights. The record reflects that the individual defendants told him of their intention not to reappoint him a day early, as a courtesy; they were under no obligation to do so. Indeed, had the individual defendants kept silent until the May 1, 2001 meeting, as was their undisputed right, and let Burrell discover at the expiration of his term that his assistant would be appointed in his stead, Burrell would have been in the same position he claims he is today. The advance warning provided by the incoming council actually gave Burrell an opportunity to get his affairs in order and start the process of converting his pension while a current employee, not the opposite. The individual defendants did not interfere with any purported prospective economic advantage, warranting summary judgment.
3. Conspiracy claims
Burrell‘s final count alleges that the defendants conspired to commit all of the wrongful acts enumerated in the prior counts. As we have affirmed the dismissal of all the predicate counts above, Burrell‘s conspiracy claim must also fail.
III. Conclusion
For all of the above reasons, we AFFIRM the judgment of the district court.
KANNE
Circuit Judge.