Moss, William H. v. Martin, Timothy ( 2007 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-3689
WILLIAM H. MOSS,
Plaintiff-Appellant,
v.
TIMOTHY MARTIN, ROBERT MILLETTE,
and BRIAN PIERSMA,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Central District of Illinois.
No. 04 C 3217—Jeanne E. Scott, Judge.
____________
ARGUED NOVEMBER 9, 2006—DECIDED JANUARY 2, 2007
____________
Before BAUER, POSNER, and FLAUM, Circuit Judges.
BAUER, Circuit Judge. William Moss brought this civil
rights action against Illinois Department of Transporta-
tion (“IDOT”) employees Timothy Martin, Robert Millette,
and Brian Piersma, seeking monetary and injunctive re-
lief under 42 U.S.C. §§ 1983 and 1988. Moss alleges that
he was fired from his position as the IDOT’s Chief of the
Highway Sign Shop because of his political affiliation, in
violation of the First Amendment, and without due
process, in violation of the Fourteenth Amendment.
Pursuant to Fed. R. Civ. P. 12(c), the defendants moved
for judgment on the pleadings, which the district court
granted. For the reasons stated herein, we affirm in part
and reverse and remand in part.
2 No. 05-3689
I. Background
The IDOT is the department in Illinois’ state govern-
ment that is responsible for developing a statewide
master plan for transportation, spending state funds for
roads and highways, developing and coordinating effective
programs and activities to facilitate the movement of
motor vehicle traffic, and protecting and conserving life
and property on Illinois’ streets and highways. See 20 ILL.
COMP. STAT. 2705/2705-200, 255, 210 (2004). The IDOT
is headed by the Secretary of Transportation, who oversees
the IDOT’s five Divisions and five Offices. 2 ILL. ADMIN.
CODE 1225.210(b). The Division of Highways has ten
separate bureaus, including the Bureau of Operations. The
Bureau of Operations consists of the Central Bureaus of
Construction, Maintenance, Materials and Physical
Research, and Traffic. 2 ILL. ADMIN. CODE 1225.280(b). The
Highway Sign Shop falls within the Bureau of Operations.
According to the IDOT position description, the Chief
of the Highway Sign Shop “is accountable for administer-
ing the Highway Sign Shop Section of the Bureau of
Operations.” The Chief “formulates and implements
policies, procedures, programs, and operational concepts
for maintenance and rehabilitation of the department’s
extensive sign and raised pavement marker systems
throughout the state.” In particular, the Chief “directs
the manufacture and distribution of all standard high-
way signs” and “directs the fabrication and installation of
overlay panels for rehabilitation of the statewide freeway
sign network.” The Chief also “maintains the depart-
ment’s comprehensive raised pavement marker system
in all highway districts and supervises a complete inven-
tory, accounting, and budgetary system to administer a
specific budget allocation for support of section activities.”
The Chief supervises approximately five employees
directly and twenty employees indirectly. The Chief
No. 05-3689 3
reports directly to the Engineer of Operations and main-
tains contact with the District Engineers, Traffic Engi-
neers, and Traffic Operations personnel in all district
offices and other central bureaus. The Chief is in contact
with the Department of Corrections, representatives of
other states, governmental agencies, research organiza-
tions, private sign fabricators, suppliers of raw materials
and installation equipment, and contractors.
The position description specifies that the Chief has
both technical and managerial responsibilities: the Chief
“is personally responsible for providing standard signs
and sign making materials, directing the fabrication and
field activities required to meet the department’s state-
wide objectives for freeway sign and raised pavement
marker rehabilitation, and administering the section’s
budgetary and manpower resources.” The Chief also
“develops programs, policies and procedures to address
sign and raised pavement marker maintenance needs” and
“administers the Sign Shop budget and prepares annual
budget and long-range program requests . . . .”
While the value of the sign system is approximately
$104 million and the value of the raised pavement marker
system is approximately $9 million, the annual operat-
ing expenses of the Highway Sign Shop are approximately
$3.7 million. This figure includes the annual expenses
associated with the fabrication of between 60,000 and
70,000 standard signs, the refurbishment of 100,000
square feet of sign panels, and the maintenance of
25,000 raised pavement markers.1
1
The district court misinterpreted the overall values associated
with the sign system and pavement marker system in the
position description as an annual operating budget for the
Highway Sign Shop of more than $100 million.
4 No. 05-3689
On March 16, 2001, Moss became a certified employee
of the IDOT. His employment as Chief of the Highway Sign
Shop was terminated on April 26, 2004. Moss filed suit
against the IDOT defendants on September 24, 2004,
alleging that he was terminated because of his political
affiliation even though his political affiliation was irrele-
vant to his job duties. He claimed that his termination
violated his First Amendment right to political affilia-
tion and, because it was without any pre-termination
hearing or proceeding, his Fourteenth Amendment right
to due process.
The IDOT defendants moved for judgment on the
pleadings, attaching the position description for the
Chief of the Highway Sign Shop to their motion. The dis-
trict court granted the defendants’ motion, finding that
the functions of Moss’ position rendered his political
affiliation a proper employment consideration. The district
court also concluded that Moss had failed to state a due
process claim because his complaint failed to allege any
basis that would support a finding that he had a property
interest in his continued employment with the IDOT.
The district court granted Moss leave to file an amended
due process claim.
In his amended complaint, Moss asserted that the
IDOT’s Personnel Policy Manual (the “Manual”) gave rise
to an enforceable property right in his continued employ-
ment with the IDOT because the Manual requires that
terminations only be for cause. The defendants at-
tached the Manual to their answer to the amended com-
plaint and filed another motion for judgment on the
pleadings, which the district court granted. The district
court found that the disclaimer language contained in the
foreword section of the Manual negated any contention
that the Manual created a contract of employment. And
even if the Manual created a contract, the district court
concluded that the Manual contained language that
No. 05-3689 5
allowed the termination of an employee either with or
without cause. This timely appeal followed.
II. Analysis
A. Political Affiliation as a Valid Qualification for
Employment
Moss first argues that the district court erred in granting
the IDOT defendants’ motion for judgment on the plead-
ings because Moss’s position as Chief of the Highway Sign
Shop is not the type of position for which a politically-
motivated personnel action is constitutionally permitted.
Under Rule 12(c), a party can move for judgment on the
pleadings after the filing of the complaint and answer.
Brunt v. Serv. Employees Int’l Union, 284 F.3d 715, 718
(7th Cir. 2002) (citing Fed. R. Civ. P. 12(c)). Only when it
appears beyond a doubt that the plaintiff cannot prove any
facts to support a claim for relief and the moving party
demonstrates that there are no material issues of fact to be
resolved will a court grant a Rule 12(c) motion. Id. at 718-
19 (citing N. Indiana Gun & Outdoor Shows, Inc. v. City of
South Bend, 163 F.3d 449, 452 (7th Cir. 1998)). We review
a district court’s ruling on a Rule 12(c) motion de novo. Id.
at 719.
If the nature of a public official’s job makes political
loyalty a valid qualification for the effective performance
of his position, that official may be terminated on the
basis of his political affiliation. Riley v. Blagojevich, 425
F.3d 357, 359 (7th Cir. 2005) (citing Elrod v. Burns, 427
U.S. 367-68, 96 S. Ct. 2673, 49 L. Ed. 2d 547 (1976); Branti
v. Finkel, 445 U.S. 507, 518, 100 S. Ct. 1287, 63 L. Ed. 2d
574 (1980)). To determine whether political loyalty is a
valid qualification, we consider whether the employee’s
position entailed “the making of policy and thus the
exercise of political judgment.” Allen v. Martin, 460 F.3d
6 No. 05-3689
939, 944 (7th Cir. 2006) (quoting Kiddy-Brown v.
Blagojevich, 408 F.3d 346, 355 (7th Cir. 2005)). We also
consider the degree of discretion and responsibility exer-
cised in the position by examining the official job descrip-
tion for the position. Id. at 944-945; Selch v. Letts, 5 F.3d
1040, 1044-45 (7th Cir. 1993). “We only look past the
official job description where the plaintiff demonstrates
systematic unreliability.” Allen, 460 F.3d at 944. To show
such systematic unreliability, a plaintiff “must provide
specific facts demonstrating that the description was
unreliable and unauthoritative.” Id.
On prior occasions, we have held that political affilia-
tion is an appropriate requirement for various positions
within state highway departments. See Selch, 5 F.3d at
1047 (political affiliation appropriate requirement for
position of subdistrict superintendent of Indiana Depart-
ment of Highways); Allen, 460 F.3d at 945 (political
affiliation appropriate requirement for IDOT’s bureau chief
of accounting and auditing). Viewing the allegations in the
light most favorable to Moss, however, we cannot conclude
at this early stage in the litigation that political loyalty is
a valid qualification for the Chief of the Highway Sign
Shop position.
“Almost all jobs in government above the lowest level
require the holder of the job to exercise at least a modicum
of discretion . . . .” Riley, 425 F.3d at 359. The Chief of the
Highway Sign Shop is no different. The Chief “exercises
substantial independent judgment in making decisions
concerning the development and implementation of
innovative rehabilitation procedures”; “is afforded broad
latitude in accomplishing his/her duties”; and “formulates
and implements policies, procedures, programs, and
operational concepts . . . .” The use of buzz words such as
“formulates policies,” “broad latitude” and “substantial
independent judgment” in a position description does not
transform professional or technical judgment into political
No. 05-3689 7
judgment, however. In his complaint, Moss alleged that
there is nothing in the job duties of the Chief of the
Highway Sign Shop that made or makes political con-
siderations a requisite for that position. The position
description alone does not refute this allegation conclu-
sively, as it raises and fails to answer numerous ques-
tions as to the judgment and discretion exercised by the
Chief of the Highway Sign Shop.
In particular, while the Highway Sign Shop is within
the Bureau of Operations, we do not know where the
Chief of the Highway Sign Shop position falls within
IDOT’s overall hierarchy. We do not know what policies
the Chief implements: whether such policies merely
ensure that signs are properly repaired or manufactured
or whether they affect the IDOT’s broader policies and
delivery of services. We do not know Moss’s salary. We do
not know what contact, if any, the Chief of the Highway
Sign Shop has with public officials or citizens regarding
signs. Cf. Selch, 5 F.3d at 1047 (subdistrict superinten-
dent received between fifteen to twenty telephone calls
a day from public officials and citizens); Allen, 460 F.3d at
945 (major challenge of bureau chief ’s position is to
respond to legislator questions on fund expenditures in
their districts).
The position description states that the Chief makes
budget requests and administers resources and man-
power to operate the sign shop, but it does not mention
whether the Chief has the power to enter into contracts.
During oral argument, Moss represented that the Chief
does not decide what signs are erected or where or when
signs are installed. Cf. Selch, 5 F.3d at 1046 (subdistrict
superintendent decided where and when road mainte-
nance work was to be completed). He does not oversee
the crews that place the signs. In the absence of addi-
tional evidence as to the functions of the Chief and the
policies developed and enforced by the Chief, the extent of
8 No. 05-3689
any political value associated with these functions and
policies is also unclear. Cf. Selch, 5 F.3d at 1046 (stating
that “the successful implementation of policy in the area
of highway maintenance would likely have substantial
effect on the public’s perception of the Democratic admin-
istration”); Allen, 460 F.3d at 945 (“[T]he effective and
reliable execution of the Bureau’s audit function is of
great political value.”). While a better-developed record
may demonstrate that political affiliation is a valid
requirement for the Chief of the Highway Sign Shop, we
simply do not have enough evidence to reach that con-
clusion now.
B. Due Process
Moss argues next that the district court erred in con-
cluding that he had no protected property interest in his
continued employment with the IDOT and by granting
defendants’ motion for judgment on the pleadings on his
due process claim. Moss argues that the Manual specifi-
cally prohibited the abridgement of his constitutional
right to choose his political party and that the language
in the Manual prohibiting these actions was mandatory.
To establish a due process claim, Moss must demonstrate
(1) that he had a constitutionally protected property
interest, (2) that he suffered a loss of that interest amount-
ing to a deprivation, and (3) that the deprivation occurred
without due process of law. Kiddy-Brown, 408 F.3d at 360
(citing Polenz v. Parrott, 883 F.2d 551, 555 (7th Cir. 1989)).
Because Moss was employed in Illinois, we look to Illinois
law to determine whether he had a property interest in
his employment with the IDOT. Johnson v. City of Fort
Wayne, Ind., 91 F.3d 922, 943 (7th Cir. 1996).
Under Illinois law, a person has a property interest
in his job only where he has a legitimate expectation of
No. 05-3689 9
continued employment based on a legitimate claim of
entitlement. Krecek v. Bd. of Police Comm’rs of La Grange
Park, 646 N.E.2d 1314, 1318, 271 Ill.App.3d 418 (Ill. App.
Ct. 1995) (citing Faustrum v. Bd. of Fire and Police
Comm’rs of the Village of Wauconda, 608 N.E.2d 640, 641,
240 Ill. App. 3d 947 (Ill. App. Ct. 1993)). “To show a
legitimate expectation of continued employment, a plain-
tiff must show a specific ordinance, state law, contract or
understanding limiting the ability of the state or state
entity to discharge him.” Id. at 1318-19. Moss’s due pro-
cess claim fails because the Manual, on which he bases
his due process claim, does not give rise to a legitimate
expectation of continued employment.
Although Illinois law presumes that an employee hired
for an indefinite period may be discharged at will for
any reason, it also recognizes that employment hand-
books have the potential to form contracts between
employers and workers. See Duldulao v. Saint Mary of
Nazareth Hospital Center, 505 N.E.2d 314, 317-18, 115
Ill. 2d 482 (Ill. 1987). A handbook that contains a clear
promise of continued employment gives rise to legal
entitlements. Id. at 318. At the same time, disclaiming
language in a handbook may preclude the formation of an
employment contract. See Davis v. Times Mirror Maga-
zines, Inc., 697 N.E.2d 380, 388, 297 Ill.App.3d 488 (Ill.
App. Ct. 1998).
In the first paragraph of its foreword, the Manual states,
This manual is provided to better acquaint you with
the personnel policies of the Illinois Department of
Transportation and does not constitute a contract of
employment in whole or in part. The Department
reserves the right to add, amend or delete any benefit
or policy stated herein at any time, except as other-
wise committed to by collective bargaining agree-
10 No. 05-3689
ments and the Department of Central Management
Services’ Personnel Rules.
(emphasis added). Under Illinois law, this unambiguous
disclaimer is sufficient to show that the Manual does not
create a legal right. See Davis, 697 N.E.2d at 388;
Habighurst v. Edlong Corp., 568 N.E.2d 226, 227, 209
Ill.App.3d 426 (Ill. App. Ct. 1991); Anders v. Mobil Chemi-
cal Co., 559 N.E.2d 1119, 1122, 201 Ill.App.3d 1088 (Ill.
App. Ct. 1990); see also Garcia v. Kankakee County
Housing Authority, 279 F.3d 532, 536 (7th Cir. 2002).
Moreover, the disclaimer was not buried or otherwise
hidden: it was the first substantive text in the Manual
and it was set forth in same typeface as the rest of the
Manual.
That the Manual also states that an employee “may be
discharged for cause” does not change our analysis. This
permissive language does not conflict with the disclaimer
that the Manual “does not constitute a contract of em-
ployment in whole or in part” or create an ambiguity
that can be construed in Moss’s favor. Cf. Perman v.
ArcVentures, Inc., 554 N.E.2d 982, 987, 196 Ill.App.3d 758
(Ill. App. Ct. 1990) (summary judgment denied on due
process claim where disclaimer in employee manual was
“not set off from the rest of the text, printed in capital
letters or titled” and manual stated that “discharges
must be approved in advance by the director of employee
relations or designees, and are subject to employee appeal
through established grievance procedures”) (emphasis
added). See also Seehawer v. Magnecraft Elec. Co., 714
F. Supp. 910, 912 (N.D. Ill. 1989) (denying summary
judgment on plaintiff ’s due process claim where employee
manual stated that “[e]mployees shall be discharged or
disciplined only for just cause” while employee state-
ment signed by plaintiff stated that “my employment
and compensation can be terminated, with or without
No. 05-3689 11
cause and notice, at any time, at the option of the Com-
pany or myself.”) (emphasis added).
Nor do the Manual’s mandatory notice procedures for
a discharge for cause allow Moss to state a due process
claim. An employee manual or handbook’s procedures do
not create an enforceable property right to a job. See
Simpkins v. Sandwich Community Hosp., 854 F.2d 215,
218 (7th Cir. 1988); Heck v. City of Freeport, 985 F.2d 305,
311 (7th Cir. 1993) (stating that “[m]ere procedural
rights . . . do not of themselves give rise to property
interests protected under the Fourteenth Amendment”).
Likewise, the provisions that state that “the rights of
department employees to voluntarily engage in political
activities and to make contributions must be recognized
and respected” and that “nothing should be done to
abridge the constitutional right of any employee to par-
ticipate in the political process” do not conflict with the
Manual’s disclaimer or otherwise create an ambiguity
that overcomes Illinois’ at-will presumption. Such lan-
guage sets forth the IDOT’s requirements for the conduct
of its employees. It does not establish a basis on which an
offer of employment may be found. Moreover, interpreting
such “language as establishing a just cause termination
protection simply ignores the reality of employment law
in Illinois and the need to read the Handbook as a coher-
ent whole.” Border v. City of Crystal Lake, 75 F.3d 270, 274
(7th Cir. 1996). The language of the Manual’s disclaimer is
clear: no employee reading the Manual could believe
reasonably that an employment contract offer had
been made. We find, therefore, that the district court
properly granted defendants’ Rule 12(c) motion for judg-
ment on the pleadings on Moss’s due process claim.
12 No. 05-3689
C. Qualified Immunity
The IDOT defendants raise the defense of qualified
immunity as an alternative basis on which to affirm
judgment in their favor, arguing that the law on this
issue was not clearly established at the time of Moss’s
termination. “Government officials performing discre-
tionary functions are entitled to qualified immunity
from suit ‘as long as their actions could reasonably have
been thought consistent with the rights they are alleged to
have violated.’ ” Kiddy-Brown, 408 F.3d at 352 (quoting
Anderson v. Creighton, 483 U.S. 635, 638, 107 S. Ct. 3034,
97 L. Ed. 2d 523 (1987)).
To defeat a qualified immunity defense, a plaintiff
must satisfy two conditions: (1) the complaint must
adequately allege facts that, if true, would constitute a
violation of a constitutional right; and (2) the case law
must be “clearly established” at the time of the alleged
violation, so that a reasonable public official would have
known that his conduct was unlawful. Delgado v. Jones,
282 F.3d 511, 515-16 (7th Cir. 2002). As established above,
Moss has satisfied the first condition by pleading a viable
First Amendment claim. With regard to the second condi-
tion, the IDOT defendants argue that the law was
not clearly established that political loyalty was not an
appropriate job requirement for the Chief of the Highway
Sign Shop. Moss is not required to produce a case that
is “directly on point” to show that a right is clearly estab-
lished, however. Kiddy-Brown, 408 F.3d at 355 (quoting
Nabozny v. Podlesny, 92 F.3d 446, 456 (7th Cir. 1996)).
Rather, “[t]he question is whether a reasonable state
actor would have known that his actions, viewed in the
light of the law at the time, were unlawful.” Id.
We have accepted as true Moss’s allegation that polit-
ical affiliation is not an appropriate requirement for the
Chief of the Highway Sign Shop position because there is
No. 05-3689 13
nothing in the Chief’s job duties that made or makes
political considerations a requisite for that position. At
this point, we also have accepted as true, albeit implicitly,
that Moss was an IDOT employee who did not engage in
policymaking. As a result, Moss was an IDOT employee
who could not be terminated because of his political
affiliation. At the time of his termination, “it was well-
established that the First Amendment prohibits a state
official from dismissing, on political grounds, an employee
who was not charged with policymaking duties.” Kiddy-
Brown, 408 F.3d at 357. Judgment on the pleadings in
favor of the IDOT defendants on the basis of qualified
immunity is therefore inappropriate. The issue of
whether the IDOT defendants are entitled to qualified
immunity may be revisited and resolved in the district
court on a more complete record. See id.
III. Conclusion
For the foregoing reasons, we affirm the district court’s
entry of judgment on the pleadings in favor of defen-
dants on Moss’s due process claim but reverse the district
court’s entry of judgment on the pleadings in favor of de-
fendants on Moss’s First Amendment claim and remand
for further proceedings.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—1-2-07