Kevin O'Gorman v. City of Chicago ( 2015 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 13-2877
KEVIN O’GORMAN,
Plaintiff-Appellant,
v.
CITY OF CHICAGO,
Defendant-Appellee.
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:11-cv-02439— Robert M. Dow, Jr., Judge.
ARGUED SEPTEMBER 9, 2014 — DECIDED JANUARY 26, 2015
Before FLAUM, ROVNER, and HAMILTON, Circuit Judges.
ROVNER, Circuit Judge. Kevin O’Gorman filed suit under 42
U.S.C. § 1983 against the City of Chicago, alleging that the City
violated his Fourteenth Amendment right to due process and
equal protection in its actions surrounding his employment
with the City. The district court granted the motion to dismiss
O’Gorman’s amended complaint, and O’Gorman appeals that
dismissal.
2 No. 13-2877
As is appropriate in the context of a motion to dismiss, we
take as true the facts as set forth in the complaint along with all
reasonable inferences. Thulin v. Shopko Stores Operating Co.,
LLC, 771 F.3d 994, 995 (7th Cir. 2014). O’Gorman worked for
the City of Chicago’s Department of General Services from
1996 until 2007, first as a carpenter and later as a General
Foreman of the General Trades. In the latter capacity, he
regularly placed orders for the City with Arrow Lumber
Company (“Arrow”), which was owned and operated by
Donald Beal. In November 2004, the Inspector General’s Office
of the City began an investigation upon receiving reports from
an Arrow employee that the company treated orders placed by
O’Gorman differently than other orders. The complaint alleges
that the investigation improperly focused on O’Gorman and
protected Arrow and Beal for political reasons. We will not set
forth those allegations in detail as they are ultimately irrelevant
to the analysis of the issues before us, but the complaint
includes allegations that Beal shredded some documents and
forged other documents to cover up Arrow’s fraud.
On May 7, 2007, O’Gorman was arrested and charged with
theft of City property. He was placed on paid administrative
leave, and on May 10 the City issued a press release announc-
ing the charges against O’Gorman, including that he had
diverted “more than $50,000 in goods from a city lumber
contractor for his own use from early 2003 to 2005, and then
filed false paperwork in an attempt to cover up the theft.” The
information was subsequently published in the Chicago
Tribune, and a link to that Tribune article was placed on the
Inspector General’s website. That announcement remained on
the website from that date to the present.
No. 13-2877 3
During the summer of 2007, O’Gorman was charged by the
City with violations of eleven City Personnel Rules based on
the same conduct, and including alleged false statements and
alleged theft and diversion of property paid for with City
funds. According to the complaint, Fran Bailey, the City’s
Human Resources Director, informed O’Gorman’s union
representative that if O’Gorman did not resign he would be
fired and that a hearing on the charges would be a “sham.”
O’Gorman also alleged that Frank Scalise, Deputy Commis-
sioner, and Ron Huberman, then-Chief of Staff to the Mayor
and O’Gorman’s immediate supervisor, told him that if he
resigned, he would be reinstated once he was acquitted of the
criminal charges. O’Gorman opted to resign on August 24,
2007.
Beal was also criminally charged, and pled guilty to
defrauding the City. O’Gorman was ultimately acquitted of all
criminal charges on January 19, 2010. He immediately re-
quested reinstatement to his City job. According to his com-
plaint, his attorney met with City Commissioner Judy Martinez
and gave her an affidavit from Scalise stating that Scalise told
O’Gorman he would be reinstated. Martinez affirmed that his
application would be reviewed in light of that information and
his acquittal, but he was not reinstated to his position.
O’Gorman alleges that the City refused to reinstate him
because he was placed on a “Do-Not-Hire List.” The existence
of the list was first made public in 2009, although the list itself
was not released to the public at that time. The list consisted of
names of individuals all of whom had either been terminated
from City positions or had resigned in the face of allegations of
wrongdoing. Individuals on the list were barred from City
4 No. 13-2877
employment, and there was no process in place by which a
person could seek removal of his name from the list. It con-
tained over 4,500 names at one point, but in early 2011, the
Inspector General’s Office and the Shakman hiring monitor
worked with the Mayor’s office to overhaul the list. The Mayor
retained sole discretion as to whether an individual was placed
on the list. A Chicago Tribune article in February 2011 revealed
that the list had been revised to include 218 names. Pursuant
to a Freedom of Information Act request, the Better Govern-
ment Association (BGA) obtained a copy of the list, and
published the names, including O’Gorman’s name.
The list published by the BGA merely sets forth a list of
persons who are ineligible for rehire for a defined period of
time, and a list of persons ineligible for an indefinite period of
time. O’Gorman is on the latter list, and the only information
included as to him is his department name and that he re-
signed in lieu of discharge. The list also set forth the criteria for
deeming an employee ineligible for rehire indefinitely. It
provided that a former employee was ineligible for rehire if his
or her termination resulted from a discharge or from a resigna-
tion in lieu of discharge in which the employee resigns after
having been served with charges. If the charges alleged
criminal activity or certain actions of moral turpitude, the
person was deemed ineligible for rehire indefinitely.
The City also pursued a civil case against O’Gorman under
the Illinois Whistleblower Act and the Chicago False Claims
Act. That case was stayed during the pendency of the criminal
proceeding, but reopened upon its termination and was
pending at the time of argument in this case.
No. 13-2877 5
We review a dismissal under Fed. R. Civ. P. 12(b)(6) de novo.
Ball v. City of Indianapolis, 760 F.3d 636, 642 -43 (7th Cir. 2014).
A complaint need not contain detailed factual allegations, but
must contain sufficient factual matter, accepted as true, to state
a claim for relief that is facially plausible. Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007); Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009); Mann v. Vogel, 707 F.3d 872, 877 (7th Cir. 2013). The
allegations must be sufficient to raise a right to relief above the
speculative level. Twombly, 550 U.S. at 555. A complainant can
plead himself out of court by including factual allegations that
establish that the plaintiff is not entitled to relief as a matter of
law. Hollander v. Brown, 457 F.3d 688, 691 n.1 (7th Cir. 2006).
Thus, although a plaintiff need not anticipate or overcome
affirmative defenses such as those based on the statute of
limitations, if a plaintiff alleges facts sufficient to establish a
statute of limitations defense, the district court may dismiss the
complaint on that ground. Cancer Fndtn, Inc. v. Carberus Capital
Management, LP, 559 F.3d 671, 674-75 (7th Cir. 2009).
O’Gorman asserts on appeal that the district court erred in
dismissing the amended complaint because he adequately
alleged violations of due process and equal protection that are
actionable under 42 U.S.C. § 1983. Specifically, in his amended
complaint he alleged that the City deprived him of his prop-
erty and liberty interests in employment without due process,
and that he was selectively prosecuted and treated less
favorably than similarly situated job applicants when he
sought reinstatement in 2010 in violation of the equal protec-
tion clause. We will consider these claims in turn.
6 No. 13-2877
With respect to the due process claims based on a property
interest, the district court identified five allegedly separate
claims raised by O’Gorman: (1) his loss of City employment in
July 2007 without due process; (2) his loss of all future City
employment without due process when O’Gorman was placed
on the “Do-Not-Hire List” in July 2007; (3) his “second loss” of
future City employment without due process around 2010 or
2011 when the list was revised but continued to include his
name; (4) his loss of employment as a teacher with the City
Colleges in August 2008 without due process; and (5) the City’s
failure to rehire him without due process in early 2010 after he
was acquitted of criminal charges. On appeal, he makes no
argument related to his employment as a teacher with the City
Colleges, and therefore we need not address that claim at all.
As to O’Gorman’s challenge to the “forced” resignation in
2007, the district court held that the claim should be dismissed
based on the statute of limitations. The limitations period for
§ 1983 claims is based in state law, and the statute of limitations
for § 1983 actions in Illinois is two years. Moore v. Burge,
771 F.3d 444, 446 (7th Cir. 2014); Wallace v. Kato, 549 U.S. 384,
387 (2007). Therefore O’Gorman’s due process claims had to be
brought within two years. The date at which the claim accrues
and thus starts the running of the limitations period is a matter
of federal law, and generally occurs when a plaintiff knows the
fact and the cause of an injury. Moore, 771 F.3d at 447; Wallace,
549 U.S. at 388. The amended complaint alleged that at the time
of his resignation in 2007, O’Gorman had been informed that
he would receive only a sham hearing and that the decision to
terminate him was preordained. Therefore, the district court
held that, by his own allegations, O’Gorman should have
No. 13-2877 7
known in 2007 that his constitutional rights to due process
were being violated, and that he had two years to pursue a
claim based on that deprivation.
O’Gorman raised two arguments in the district court to
rebut that conclusion. First, he contended that under an Illinois
savings provision applicable to counter-claims, he had until
2013 to file his claim; second, he maintained that the discovery
rule should apply to his claims based on his 2007 resignation
because he did not discover the nature of his injuries until 2011.
The district court rejected both of those arguments.
On appeal, O’Gorman has abandoned those arguments.
Instead, he now argues that the statute of limitations is in-
applicable because the 2007 violation was part of a continuing
violation or that it was part of an eight-year long conspiracy
and that the statute of limitations does not begin to run until
the last of the actions occurred. Those arguments, which are in
any case meritless, see e.g. Moore, 771 F.3d at 447 (“[e]ach
discrete act—something wrongful independent of other
events—carries its own period of limitations”), were not
presented to the district court. We have repeatedly held that a
party opposing a motion in the district court must inform the
court of the factual and legal reasons why the motion should
not be entered, and if it fails to do so it cannot then raise those
arguments on appeal. United States v. Ritz, 721 F.3d 825, 827-28
(7th Cir. 2013); Frey Corp. v. City of Peoria, 735 F.3d 505, 509 (7th
Cir. 2013)(where defendant changed its theory after losing
below, the argument not raised in the district court is waived
on appeal). Accordingly, the district court properly dismissed
the due process challenge to the 2007 “forced” resignation as
untimely.
8 No. 13-2877
We are left, then, with his due process challenges to the
failure to reinstate him to his position after acquittal, and
failure to rehire him for a City position in 2010 and 2011 based
on his presence on the Do-Not-Hire List. The district court held
that he had failed to demonstrate a property interest in future
employment by the City, and that dismissal was proper. In
order to proceed on his claim that he was deprived of a
property interest, O’Gorman had to allege the existence of a
constitutionally-protected interest. Moss v. Martin, 473 F.3d 694,
700 (7th Cir. 2007). Property interests are not created by the
Constitution, but rather are created and defined by existing
rules or understandings that stem from an independent source
such as state law. Akande v. Grounds, 555 F.3d 586, 590 (7th Cir.
2009); Chicago Teachers Union, Local No. 1, Am. Federation of
Teachers v. Bd. of Educ. of the City of Chicago, 662 F.3d 761, 763
(7th Cir. 2011). “Accordingly, federal property interests under
the 14th Amendment usually arise from rights created by state
statutes, state or municipal regulations or ordinances, and
contracts with public entities.” Ulichny v. Merton Community
School Dist., 249 F.3d 686, 700 (7th Cir. 2001). O’Gorman points
to no state law, ordinance or contract that would entitle him to
reinstatement in his position after resigning, or after being
terminated and subsequently cleared of criminal charges. In
fact, O’Gorman relies on the Collective Bargaining Agreement
(CBA) in his argument that he could only be terminated for just
cause, but does not dispute that the same CBA, which was
adopted by the City Council as an ordinance, provides that
“[n]otwithstanding the provisions of any ordinance or rule to
the contrary ... the employee shall have no right to be rehired,
if the employee quits, [or] is discharged ...” That affirmatively
No. 13-2877 9
indicates that there is no property interest in being rehired.
O’Gorman has failed to identify any source of state law or rules
that would establish a property interest here. O’Gorman points
instead to the representations by Scalise and Huberman that he
would be reinstated once he was acquitted in the criminal trial.
Those statements cannot form the basis for a suit against the
City because there is no plausible allegation that Scalise or
Huberman were policy-makers for the City in a position to
bind the City or enter into a contract, particularly given the
clear language of the CBA on the matter. O’Gorman also claims
that the CBA establishes a property interest in providing that
he can only be terminated for just cause, but as previously
noted, the challenge to the original resignation (or constructive
discharge as he characterizes it) is barred by the statute of
limitations.
O’Gorman also pursues procedural due process challenges
premised on a liberty interest rather than a property interest.
In order to proceed on such a claim, O’Gorman must suffi-
ciently allege that he has a cognizable liberty interest under the
Fourteenth Amendment, that he was deprived of that liberty
interest, and that the deprivation was without due process.
Mann, 707 F.3d at 877. It is well-established that an individual
does not have any cognizable liberty interest in his reputation,
and therefore “‘mere defamation by the government does not
deprive a person of liberty protected by the Fourteenth
Amendment, even when it causes serious impairment of one’s
future employment.’” Id. at 878 quoting Dupuy v. Samuels,
397 F.3d 493, 503 (7th Cir. 2005); Hojnacki v, Klein-Acosta,
285 F.3d 544, 548 (7th Cir. 2002); Siegert v. Gulley, 500 U.S. 226,
233-34 (1991). Only when paired with the alteration of legal
10 No. 13-2877
status, such as a right previously held, will such defamation
implicate due process rights. Mann, 707 F.3d at 878. If the state
actor casts doubt on the individual’s reputation or character in
such a manner that it becomes virtually impossible for that
person to find employment in his chosen field, then the
government has infringed upon that individual’s liberty
interest to pursue the occupation of his choice. Id.
O’Gorman presents only a cursory argument in his opening
brief on appeal that the City deprived him of a liberty interest
without process, devoting only four conclusory sentences to
identifying the actions that impaired his liberty interest and the
impact on his ability to pursue his occupation. He asserts that
“repeated publications by various City agents ... significantly
impinge[d] his ability to pursue any occupation at all.” The
“publications” that he identifies include that in 2007 the
Inspector General’s office posted and left displayed for over
five years on its website the information that O’Gorman had
been arrested for theft, that the City’s Law Department
reinstated civil charges of theft, and that the Inspector
General’s office in 2011 issued a press release stating that
O’Gorman was permanently banned from City employment
based on his resignation in lieu of discharge when facing such
charges (which apparently refers to the BGA’s press release
regarding the do-not-hire list which O’Gorman attributes to the
City).
There are numerous potential problems with this challenge,
including that he presents no allegations that the process
provided in the Law Department’s civil lawsuit itself is
constitutionally deficient, and that the City refused to publish
the do-not-hire list in 2009 and released it in 2011 only in
No. 13-2877 11
response to a FOIA request, at which time it was publicly
released by the BGA not the City. We need not consider
whether compliance with a FOIA request could constitute
actionable dissemination of that information to the public,
though, because the liberty interest claim fails for the more
fundamental reason that it was not timely filed. For all of
those allegations, the alleged stigma to his reputation stemmed
from the charges of theft, but as O’Gorman himself recognizes
those allegations were first publicly disclosed by the City in
2007 when the Inspector General’s office posted it on its
website where it remained for five years. O’Gorman failed to
pursue a due process challenge based upon the public disclo-
sure of that information within the two year limitations period,
and therefore is barred from asserting it at this time. Moore,
771 F.3d 444, 446 (statute of limitations for § 1983 actions in
Illinois is two years).
Finally, his remaining claims are similarly without merit.
He alleges that he was denied equal protection based on
theories of selective prosecution and a class-of-one theory that
he was treated differently than other employees or prospective
employees not based on his membership in a protected class.
The selective prosecution claim was not developed on appeal
and is waived. See Zuppardi v. Wal-mart Stores, Inc., 770 F.3d
644, 648 (7th Cir. 2014). As for his class-of-one theory, the
Supreme Court has held that class-of-one claims are inapplica-
ble to situations of public employment such as the one pre-
sented here, and he has presented no reasoned basis to
distinguish that authority. See Engquist v. Oregon Dept. of Agr.,
553 U.S. 591, 598 (2008). He also raises a claim of malicious
prosecution but that claim was never presented in the district
12 No. 13-2877
court or in the complaint itself, and therefore is not before us.
Ritz, 721 F.3d at 827-28; Frey Corp., 735 F.3d at 509.
The decision of the district court is AFFIRMED.