Joshua Cheli v. Taylorville Community School D ( 2021 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 20-2033
JOSHUA L. CHELI,
Plaintiff-Appellant,
v.
TAYLORVILLE COMMUNITY SCHOOL DISTRICT, et al.,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Central District of Illinois.
No. 19-cv-03085 — Sue E. Myerscough, Judge.
____________________
SUBMITTED DECEMBER 10, 2020* — DECIDED FEBRUARY 3, 2021
____________________
Before SYKES, Chief Judge, and FLAUM and KANNE, Circuit
Judges.
FLAUM, Circuit Judge. Taylorville Community School Dis-
trict #3 (the “District”) terminated plaintiff Joshua Cheli. A
*We granted the parties’ joint motion to decide this case without oral ar-
gument because the briefs and record adequately present the facts and le-
gal arguments, and oral argument would not significantly aid the Court.
Fed. R. App. P. 34(a)(2)(C).
2 No. 20-2033
collective bargaining agreement between the District and its
employees provided, among other things, that an “employee
may be … discharged for reasonable cause.” Cheli sued the
District and others for violating his procedural due process
rights under the Fourteenth Amendment. The district court
dismissed his case because it found that he lacked a protected
property interest in his continued employment. We disagree.
The collective bargaining agreement established that Cheli
could not be terminated except “for reasonable cause,” which
created a protected property interest for which he was enti-
tled to due process. We accordingly reverse the district court.
I. Background
Cheli worked as a computer systems administrative assis-
tant for the District from 2014 until 2018. He reported to the
District’s superintendent Gregg Fuerstenau, Director of Com-
puter Services Chris Kuntzman, and Board of Education of
Taylorville CUSD #3 (the “Board”), also defendants in this
case. On September 28, 2018, with about twenty-five minutes’
notice, Fuerstenau and Kuntzman ushered Cheli to a meeting.
At the meeting, which lasted only a few minutes, Fuerstenau
and Kuntzman terminated Cheli because a female student
had alleged that Cheli had sexually harassed her three weeks
prior. Cheli denied the allegations, but Fuerstenau and Kuntz-
man told him the decision was a foregone conclusion.
The Board memorialized Cheli’s termination by entering
a resolution on October 9, 2018, which retroactively took ef-
fect on September 28. Cheli never received notice of the Octo-
ber 9 Board meeting at which the Board passed the resolution,
nor did Cheli receive written notice of the charges or the evi-
No. 20-2033 3
dence against him considered by the Board. Based on the res-
olution, the Board sent Cheli a notice of termination via certi-
fied mail stating that “[t]he basis or grounds for discharge in-
clude incompetence.” That notice informed Cheli that he
could request the written report submitted by Fuerstenau
stating the reasons for his discharge. However, the District
did not provide the report upon Cheli’s request.
Central to this dispute is the collective bargaining agree-
ment that governed Cheli’s employment with the District.
Taylorville’s Educational Support Personnel, Cheli’s bargain-
ing unit, had entered into a collective bargaining agreement,
the Master Agreement, with the District for the 2017–2018 and
2018–2019 school years. Article VII of the Master Agreement,
titled “Discipline or Dismissal,” provides in full:
8.1 An employee may be disciplined, sus-
pended, and/or discharged for reasona-
ble cause. Grounds for discharge and/or
suspension shall include, but not be lim-
ited to, drunkenness or drinking or car-
rying intoxicating beverages on the job,
possession or use of any controlled
and/or illegal drug, dishonesty, insubor-
dination, incompetency, or negligence in
the performance of duties.
8.2 A conference with the employee shall be
held prior to any suspension and/or dis-
charge.
8.3 An employee shall have the right to a
representative of his/her choice in any
4 No. 20-2033
meeting which may result in suspension
and/or discharge.
8.4 A written explanation for the suspension
and/or discharge shall be given the em-
ployee so affected.
8.5 Upon initial employment with Taylor-
ville Community Unit School District #3,
non-certified employees will serve a one
hundred twenty (120) day probationary
period. During the period, the probation-
ary non-certified employee will be an at-
will employee. If the employee’s work is
deemed unsatisfactory by the Admin-
istration and the Board during this pe-
riod, the Board, at its discretion, may ter-
minate the employment.
Another document, the District’s Policy Manual (the
“Manual”), incorporated the Master Agreement and further
elaborated on employee termination policies within the Dis-
trict. That Manual contains a provision titled “Employment
At-Will,” providing that:
Unless otherwise specifically provided, District
employment is at-will, meaning that employ-
ment may be terminated by the District or em-
ployee at any time for any reason, other than a
reason prohibited by law, or no reason at all.
Nothing in School Board policy is intended or
should be construed as altering the employment
at-will relationship.
No. 20-2033 5
Exceptions to employment at-will may include
employees who are employed annually, have
an employment contract, or are otherwise
granted a legitimate interest in continued em-
ployment. The Superintendent is authorized to
make exceptions to employing non-licensed
employees at-will but shall maintain a record of
positions or employees who are not at-will.
Based on his view that the Master Agreement gave him a
protected property interest in his employment, Cheli sued the
defendants under 42 U.S.C. § 1983, claiming the defendants
violated his right to procedural due process under the Four-
teenth Amendment. His suit included two counts, alleging he
had a protected property interest in his employment and de-
fendants violated his procedural due process rights by termi-
nating him without (1) a predeprivation and (2) a postdepri-
vation hearing. The defendants filed a motion to dismiss for
failure to state a claim under Federal Rule of Civil Proce-
dure 12(b)(6). The district court granted defendants’ motion,
finding that the facts Cheli alleged were “insufficient to per-
mit a reasonable inference that [Cheli] ha[d] a constitutionally
protected property interest in his continued employment
with [the District].”
II. Discussion
“We review a district court’s grant of a 12(b)(6) motion to
dismiss de novo.” Roberts v. City of Chicago, 817 F.3d 561, 564
(7th Cir. 2016). We also review a district court’s interpretation
of state law de novo. McCammon v. Ind. Dep’t of Fin. Insts.,
973 F.2d 1348, 1350 (7th Cir. 1992) (citing Salve Regina Coll. v.
6 No. 20-2033
Russell, 499 U.S. 225, 231 (1991)). To survive a motion to dis-
miss, Cheli must plead “enough facts to state a claim to relief
that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007). We must “construe the complaint in the light
most favorable to the plaintiff, accepting as true all well-
pleaded facts alleged, and drawing all possible inferences in
[his] favor.” Tamayo v. Blagojevich, 526 F.3d 1074, 1081 (7th Cir.
2008).
The Due Process Clause of the Fourteenth Amendment
provides that “[n]o state shall … deprive any person of life,
liberty, or property, without due process of law.” U.S. Const.
amend. XIV, § 1. Relevant to this case, “[t]o demonstrate a
procedural due process violation of a property right, the
plaintiff must establish that there is ‘(1) a cognizable property
interest; (2) a deprivation of that property interest; and (3) a
denial of due process.’” Khan v. Bland, 630 F.3d 519, 527 (7th
Cir. 2010) (quoting Hudson v. City of Chicago, 374 F.3d 554, 559
(7th Cir. 2004)).
Cheli “cannot under Section 1983 complain of procedural
due process violations unless the state has first deprived
him … of such a constitutionally protected [property] inter-
est.” See Lekas v. Briley, 405 F.3d 602, 607 (7th Cir. 2005). There-
fore, “the threshold question is whether a protected property
interest actually exists.” Cole v. Milwaukee Area Tech. Coll. Dist.,
634 F.3d 901, 904 (7th Cir. 2011). Cheli and the defendants
agree that the only issue on appeal is whether the Master
Agreement gave Cheli a protected property interest in his em-
ployment.
Property interests are not inherent in the Constitution;
“[r]ather, they are created and their dimensions are defined
No. 20-2033 7
by existing rules or understandings that stem from an inde-
pendent source such as state law.” Bd. of Regents of State Colls.
v. Roth, 408 U.S. 564, 577 (1972); see also Bishop v. Wood,
426 U.S. 341, 344 (1976) (“[T]he sufficiency of the claim of en-
titlement must be decided by reference to state law.”). We
therefore determine whether Cheli had a protected property
interest in his employment with reference to Illinois law, the
law of the state where Cheli was employed. See Moss v. Mar-
tin, 473 F.3d 694, 700 (7th Cir. 2007).
“Under Illinois law, a person has a property interest in his
job only where he has a legitimate expectation of continued
employment based on a legitimate claim of entitlement.” Id.Accordingly, “[t]o show a legitimate expectation of continued
employment, a plaintiff must show a specific ordinance, state
law, contract or understanding limiting the ability of the state
or state entity to discharge him.” Id. (quoting Krecek v. Bd. of
Police Comm’rs of La Grange Park, 646 N.E.2d 1314, 1318–19 (Ill.
App. Ct. 1995)). Illinois law presumes “an employment rela-
tionship without a fixed duration is terminable at will.” See
Duldulao v. Saint Mary of Nazareth Hosp. Ctr., 505 N.E.2d 314,
317–18 (Ill. 1987). However, that presumption “can be over-
come by demonstrating that the parties contracted other-
wise.” Id. at 318. “Property interests in employment may be
created by express or implied contracts ….” Farmer v. Lane,
864 F.2d 473, 478 (7th Cir. 1988).
Turning to the facts at hand, Cheli points to the Master
Agreement as the contract establishing that he had a legiti-
mate expectation of continued employment. Generally, to
show a protected property interest in the employment con-
text, “the terms of employment must provide that termination
will only be ‘for cause’ or ‘otherwise evince mutually explicit
8 No. 20-2033
understandings of continued employment.’” See Cromwell v.
City of Momence, 713 F.3d 361, 364 (7th Cir. 2013) (quoting
Omosegbon v. Wells, 335 F.3d 668, 674 (7th Cir. 2003)). A collec-
tive bargaining agreement with such a provision could create
a property interest for due process purposes. See, e.g., Brock v.
Roadway Express, Inc., 481 U.S. 252, 260–61 (1987) (noting that
the Secretary of Labor conceded that a collective bargaining
agreement requiring termination only for cause could “con-
stitute[] a property interest protected by the Fifth Amend-
ment”); Roman v. U.S. Postal Serv., 821 F.2d 382, 386 (7th Cir.
1987) (“This property interest is created by the collective bar-
gaining agreement between the Postal Service and the Union,
which provides that no employee shall be disciplined or dis-
charged ‘without just cause.’”).
Therefore, the essential question on appeal is whether the
Master Agreement provided the District could only terminate
Cheli for cause. We interpret the plain language of the Master
Agreement to answer that question. See, e.g., Lashbrook v. Oerk-
fitz, 65 F.3d 1339, 1346 (7th Cir. 1995) (construing plain lan-
guage of employment contract to determine whether it cre-
ated job security); Hohmeier v. Leyden Cmty. High Schs. Dist.
212, 954 F.2d 461, 464 (7th Cir. 1992) (assessing manual under
Duldulao framework to determine whether a personnel man-
ual created a contractual right that overcame Illinois’s at-will-
employment presumption). We proceed, then, by addressing
Sections 8.1, 8.5, and 8.2–8.4 of the Master Agreement in turn.
A. Section 8.1
Section 8.1 of Article VII of the Master Agreement pro-
vides “[a]n employee may be disciplined, suspended, and/or
discharged for reasonable cause.” The parties appear to agree
that the “reasonable cause” language is similar to “just cause”
No. 20-2033 9
or “for cause” language that courts regularly hold to create an
expectation of continued employment for due process pur-
poses. See Logan v. Zimmerman Brush Co., 455 U.S. 422, 430
(1982) (“The hallmark of property, the Court has emphasized,
is an individual entitlement grounded in state law, which can-
not be removed except ‘for cause.’”); Cain v. Larson, 879 F.2d
1424, 1426 (7th Cir. 1989) (“In order to give rise to a constitu-
tionally protected property interest, a statute or ordinance
must go beyond mere procedural guarantees to provide some
substantive criteria limiting the state’s discretion—as can be
found, for example, in a requirement that employees be fired
only ‘for cause.’”); see also Roman, 821 F.2d at 386 (“This prop-
erty interest is created by the collective bargaining agree-
ment …, which provides that no employee shall be disci-
plined or discharged ‘without just cause.’”). We must there-
fore determine whether Section 8.1’s specific language (“may
be … discharged for reasonable cause”) allows defendants to
terminate Cheli only for “reasonable cause.” If that language
is mandatory, then the agreement overcomes the at-will pre-
sumption under Illinois law and establishes a protectable
property interest. Cheli argues that the language is manda-
tory such that defendants may only terminate employees “for
reasonable cause.” Defendants, by contrast, argue the lan-
guage is permissive because while they may terminate “for
reasonable cause” they are not required to find “reasonable
cause” prior to terminating an employee. They therefore con-
tend that the district court correctly concluded that this “per-
missive language does not create a property interest in con-
tinued employment.” We disagree.
We hold that the language of Section 8.1 mandates the
only way defendants “may” terminate its employees who are
party to the agreement: with a showing of “reasonable cause.”
10 No. 20-2033
Section 8.1 imposes a requirement that defendants find “rea-
sonable cause” to terminate an employee like Cheli. Per Sec-
tion 8.1, on the condition of a finding of reasonable cause, de-
fendants have discretion whether to take disciplinary action.
Inversely, they cannot terminate employees without satisfy-
ing that reasonable-cause condition, which is to say the
“state’s discretion is clearly limited such that the plaintiff can-
not be denied the interest unless specific conditions are met.”
Khan, 630 F.3d at 527 (internal quotation marks omitted)
(quoting Brown v. City of Mich. City, Ind., 462 F.3d 720, 729 (7th
Cir. 2006)); see also A. Scalia & B. Garner, Reading Law: The In-
terpretation of Legal Texts 112 (2012) (analyzing the text “[t]he
tenant may vacate the premises on 30 days’ written notice” to
mean that when the condition is satisfied, the tenant has per-
mission to vacate). Therefore, Cheli had a reasonable expecta-
tion in his continued employment because Section 8.1 con-
fined defendants’ discretion to terminate him. Flowing from
the limits placed on defendants’ discretion, then, Cheli en-
joyed a protected property interest for the purposes of due
process.
The remainder of Section 8.1 reinforces our view that this
provision constrains defendants’ otherwise wide latitude.
Specifically, Section 8.1 lists what employee conduct might
establish “reasonable cause” for dismissal: “drunkenness or
drinking or carrying intoxicating beverages on the job, pos-
session or use of any controlled and/or illegal drug, dishon-
esty, insubordination, incompetency, or negligence in the per-
formance of duties.” This list of grounds for discipline, as
with the sentence preceding it requiring “reasonable cause,”
“establish[ed] a framework of factual conditions delimiting
entitlements which are capable of being explored at a due pro-
cess hearing.” Khan, 630 F.3d at 527 (quoting Fincher v. S. Bend
No. 20-2033 11
Heritage Found., 606 F.3d 331, 334 (7th Cir. 2010)). If defend-
ants needed no reason at all to terminate employees, as is the
case for at-will employees, this language would be mere “sur-
plusage.” See Curia v. Nelson, 587 F.3d 824, 829 (7th Cir. 2009)
(quoting Coney v. Rockford Life Ins. Co., 214 N.E.2d 1, 3 (Ill.
App. Ct. 1966)).
Our decision in McCammon v. Indiana Department of Finan-
cial Institutions further supports our conclusion regarding Sec-
tion 8.1. In McCammon, we held that language comparable to
Section 8.1 created a property interest. In that case analyzing
Indiana law,1 we interpreted a statute that provided that
“[a]ny of the … employees … may be removed, at any
time … for inefficiency, incompetency, or neglect of or failure
to perform their duties.” McCammon, 973 F.2d at 1350 (em-
phasis altered). We held the plaintiffs “had a protectible prop-
erty interest in their employment,” id. at 1353, even though
the “may be removed” language (much like the “may be …
discharged” language here) could be characterized as permis-
sive. We agreed with the plaintiffs’ contention that reading
the statute as merely permissive “would do violence to the
language of the provision, because [i]t would then be neces-
sary to read the statute as ‘… may be removed … for ineffi-
ciency, incompetency, or neglect of or failure to perform their
duties [or for any other reason, or for no reason at all].’” Id. at 1351
1 While McCammon concerned Indiana law, Indiana and Illinois law share
similarities with respect to the issues before us. Both states provide a re-
buttable presumption of at-will employment. Moreover, both states rely
on traditional canons of interpretation to interpret legal texts (statutes in
McCammon and contracts in this case). As such, McCammon provides help-
ful guideposts for our analysis, even though it is neither binding on us nor
was cited by the parties here.
12 No. 20-2033
(alteration in original) (internal quotation marks omitted).
Here, defendants ask us to do that very violence to the Master
Agreement and read “may be … discharged for reasonable
cause” as instead saying “may be … discharged for reasona-
ble cause [or for any other reason, or no reason at all.]” We decline
to rewrite the Master Agreement. See Thompson v. Gordon,
948 N.E.2d 39, 51 (Ill. 2011) (“[A] court cannot alter, change or
modify existing terms of a contract, or add new terms or con-
ditions to which the parties do not appear to have assented.”).
We disagree with the district court’s conclusion that the
language is permissive because adopting that reading would
treat Section 8.1 as surplusage. Under Illinois law,
[i]n construing contracts, to determine their in-
tent, it is long established that a construction
should be adopted, if possible, which ascribes
meaning to every clause, phrase and word used;
which requires nothing to be rejected as mean-
ingless, or surplusage; which avoids the neces-
sity of supplying any word or phrase that is not
expressed; and which harmonizes all the vari-
ous parts so that no provision is deemed con-
flicting with, or repugnant to, or neutralizing of
any other.
Curia, 587 F.3d at 829 (quoting Coney, 214 N.E.2d at 3); see also
Thompson, 948 N.E.2d at 47 (“A court will not interpret a con-
tract in a manner that would nullify or render provisions
meaningless, or in a way that is contrary to the plain and ob-
vious meaning of the language used.”). We therefore must in-
terpret the Master Agreement—a contract—as establishing le-
gal rights distinct from what would have existed in its ab-
sence, lest we render that contract meaningless. Defendants
No. 20-2033 13
would have us construe the Master Agreement to allow de-
fendants to fire its employees without restriction, but the Mas-
ter Agreement would not have been necessary to give defend-
ants this authority. Illinois law would have presumptively
found Cheli an at-will employee in the Master Agreement’s
absence. Hartlein v. Ill. Power Co., 601 N.E.2d 720, 728 (Ill. 1992)
(explaining that employers “may discharge an employee-at-
will for any reason or for no reason”). Alternatively, defend-
ants suggest that Section 8.1 merely provides one way they
may terminate employees, but as defendants acknowledge,
“all employees in Illinois may be dismissed for cause.”
Clearly Section 8.1 does not purport to restate this truism but
rather states that “reasonable cause” is the only way to dismiss
these employees. Accordingly, Section 8.1 overrides the at-
will-employment presumption in Illinois and raises the bar
for what defendants must find before terminating its employ-
ees. In so doing, Section 8.1 vests its employees, like Cheli,
with protected property interests.
Defendants’ attempt to analogize this case to a trio of cases
in which we held there was no protectable property interest
does not alter our analysis. To defend their view that Sec-
tion 8.1 only permitted, not required, them to terminate Cheli,
defendants point to Flaningam v. County of Winnebago, 243 F.
App’x 171 (7th Cir. 2007), Border v. City of Crystal Lake, 75 F.3d
270 (7th Cir. 1996), and Lashbrook v. Oerkfitz, 65 F.3d 1339 (7th
Cir. 1995). In each of these cases, we concluded that the plain-
tiffs could not identify a “specific ordinance, state law, con-
tract or understanding” that cabined the defendants’ discre-
tion. Moss, 473 F.3d at 700. The defendants here thus argue
that Cheli’s only “proof” of job security is language that we
14 No. 20-2033
have previously considered too permissive to support a pro-
tected property interest. However, they do so only after gloss-
ing over key factual distinctions in those cases.
In Flaningam, an unpublished opinion,2 we interpreted a
county code stating that “[i]n general, any action or attitude
which adversely affects job performance or the reputation of
the county government may be cause for disciplinary action.”
243 F. App’x at 173. We held this language did “not limit the
County’s discretion or create an assurance of continued em-
ployment.” Id. We noted that “permissive language” like that
in the county code “generally does not create an enforceable
property right.” Id. at 174.
The Master Agreement is readily distinguishable for two
reasons. First, it contains negligible permissive language. Un-
like the multiple permissive terms (“in general,” “any action
or attitude,” “affects job performance,” and “reputation of the
county”) in Flaningam, the Master Agreement “limit[s] the
[defendants’] discretion.” See id. at 173. For the reasons ex-
plained above, the single “may” in Section 8.1 is not some tal-
ismanic word that automatically eviscerates Section 8.1’s
commands. Second, while the county code in Flaningam per-
mitted discipline for “any action or attitude,” Section 8.1 enu-
merates specific “[g]rounds for discharge” that evince a clear
“limit [on] the [Board’s] discretion.” Id. at 173–74 (emphasis
added).
2 Circuit Rule 32.1(b) provides that “Orders, which are unsigned, are re-
leased in photocopied form, are not published in the Federal Reporter, and
are not treated as precedents.” Accordingly, Flaningam is merely persua-
sive authority, “and like any persuasive authority is entitled only to the
weight that the force of its reasoning commands.” United States v. Papia,
910 F.2d 1357, 1362 (7th Cir. 1990).
No. 20-2033 15
We turn next to Border. In Border, the plaintiff argued his
employee handbook providing for termination and discipline
“at any time, as may be appropriate, for conduct or perfor-
mance” created a protectable interest. 75 F.3d at 272. We ex-
plained that under the Illinois Supreme Court’s test in
Duldulao, employee handbooks only “create[] enforceable
contractual rights if the traditional requirements for contract
formation are present.” See id. at 273 (quoting Duldulao,
505 N.E.2d at 318). We then concluded that the handbook’s
language was too “weak” to qualify as an “employment con-
tract offer,” and the parties thus had not formed an implied
contract for job security. Id. at 274. Consequently, Border
could not rebut Illinois law’s presumption of at-will employ-
ment because he failed to identify an entitlement under state
law for due process purposes. See id. at 274.
Defendants’ reliance on Border fares even worse. Unlike
Border, Cheli does not have the threshold challenge of show-
ing the Master Agreement is “enforceable either as an ordi-
nance or as an implied contract” for job security with his em-
ployer. Id. at 274. Rather, the Master Agreement is an express
employment contract with “just cause” language “that gov-
erned his employment relationship with [the defendants],
and the instant case is distinguishable on that ground alone.”
See Lashbrook, 65 F.3d at 1346; see also McWhorter v. Realty
World-Star, Inc., 525 N.E.2d 1205, 1208 (Ill. App. Ct. 1988) (dis-
tinguishing between implied and express employment con-
tracts).
Furthermore, as in Flaningam, the Border handbook’s mul-
tiple permissive terms (“any time,” “as may be appropriate,”
and “for conduct or performance”) preserved the defendant’s
16 No. 20-2033
discretion. Id. at 272. In contrast, Section 8.1’s single invoca-
tion of the word “may” does not. Also, unlike the handbook,
Section 8.1 contains the explicit phrase “reasonable cause”—
a “hallmark of property” interests. See Logan, 455 U.S. at 430.
Of additional significance, neither the Master Agreement
nor the Manual contains any language disclaiming a property
interest. In Border, the presence of an explicit disclaimer that
the employee handbook created a property interest “utterly
dashed” any “incipient hope of a contractual promise.” Bor-
der, 75 F.3d at 274; see also Moss, 473 F.3d at 700–01 (holding
there was no “legitimate expectation of continued employ-
ment” because the policy manual at issue contained an “un-
ambiguous disclaimer” of any property interest, even if the
manual also stated that an employee “may be discharged for
cause”). Here, the district court and defendants focus on the
Manual’s language that “[u]nless otherwise specifically pro-
vided, District employment is at-will,” as evidence of a dis-
claimer. Far from an “unambiguous,” Moss, 473 F.3d at 700,
or “clear disclaimer,” Border, 75 F.3d at 275, however, this lan-
guage expressly preserves the possibility of a property interest
“otherwise specifically provided.” In fact, the Manual later
spells out an exception to at-will employment for employees
“granted a legitimate interest in continued employment,”
which is the precise issue now before us. That the Manual es-
tablishes at-will employment as the default is therefore irrel-
evant because Cheli enjoys a “legitimate interest in continued
employment” under Section 8.1 of the Master Agreement.
Finally, we turn to Lashbrook. In Lashbrook, an employee ar-
gued first that an “automatic renewal” provision in his em-
ployment contract provided a protectable property interest.
65 F.3d at 1344. We concluded, however, that the contract did
No. 20-2033 17
not “create a reasonable expectation of continued employ-
ment” because it elsewhere permitted Lashbrook or his em-
ployer to terminate the contract. Id. at 1346. Therefore, Lash-
brook had to point to some other promise of “a right to con-
tinued employment, even at the end of the Contract’s term.”
Id. Lashbrook asserted that his employee handbook (the per-
sonnel policy manual (“PPM”)) provided a promise of job se-
curity. He argued the PPM “overr[o]de[] the plain terms” of
his employment contract based on theories of contract modi-
fication and parol evidence. See id. We concluded that the
PPM was not an “enforceable modification,” so it “failed to
become part of the employment contract.” Id. at 1346–47. We
further explained in dicta that the PPM’s language was too
permissive under the Duldulao test in any event. We stated
that Lashbrook “could not reasonably believe that the state-
ment ‘Department Heads, with the approval of the Director,
may dismiss any employee for just cause’ would mean that he
could only be dismissed for just cause[,]” because the cited
PPM language was “permissive, not mandatory.” Id. at 1347(emphasis added). We also rejected the notion that the PPM
was admissible as parol evidence. Id.The instant case is clearly distinct from Lashbrook. As a pre-
liminary matter, while Lashbrook’s employment contract al-
lowed either Lashbrook or his employer to terminate with
sixty days’ notice, Section 8.1 by its plain terms allows termi-
nation only with “just cause.” Id. at 1346.
In addition, the plain terms of the employee manual in
Lashbrook did not apply the “just cause” provision to Lash-
brook. See id. at 1347 (reasoning the provision did not apply
to Lashbrook because he “was the Director” and a “provision
18 No. 20-2033
allowing a lower level employee (a Department Head) to dis-
miss other employees with Lashbrook’s approval could hardly
provide additional rights to Lashbrook himself”). By contrast,
the Master Agreement expressly covers “an employee,” like
Cheli, so it may “provide additional rights to [Cheli] himself.”
See id. Lashbrook, like Border, also involved a “prominent dis-
claimer” such that the PPM statements “could [not] have cre-
ated a reasonable belief in Lashbrook that an offer of employ-
ment was being made.” Id. Here, the “disclaimer” in the Man-
ual to which defendants point, as explained above, rather
than undermining any legitimate expectation of employment,
expressly preserved the possibility of a property interest.
Overall, defendants effectively urge us to interpret the en-
tire Master Agreement based on a single remark in Lashbrook
that if the PPM had been an enforceable modification of Lash-
brook’s employment contract, it was too permissive anyways.
We decline to do so. Viewed in the proper context, Lashbrook
does not advance the defendants’ case.
Finally, none of the above three cases featured a contract
structure that reinforced a promise of job security. “[W]hen
parties to the same contract use … different language to ad-
dress parallel issues … it is reasonable to infer that they intend
this language to mean different things.” Right Field Rooftops,
LLC v. Chi. Cubs Baseball Club, LLC, 870 F.3d 682, 690 (7th Cir.
2017) (some alterations in original) (quoting Taracorp, Inc. v.
NL Indus., Inc., 73 F.3d 738, 744 (7th Cir. 1996)); see also PQ
Corp. v. Lexington Ins. Co., 860 F.3d 1026, 1033 (7th Cir. 2017)
(“Illinois courts maintain a ‘strong presumption against pro-
visions that easily could have been included in [a] contract but
were not. A court will not add another term about which an
agreement is silent.’” (alteration in original) (quoting Klemp v.
No. 20-2033 19
Hergott Grp., Inc., 641 N.E.2d 957, 962 (Ill. App. Ct. 1994))).
Here, Section 8.5 of Article VII of the Master Agreement af-
firmatively provides the Board with the authority to termi-
nate employees covered by Section 8.5’s probationary period
“at its discretion.” A comparable term “easily could have been
included in [Section 8.1] but [was] not.” See PQ Corp., 860 F.3d
at 1033 (quoting Klemp, 641 N.E.2d at 962); see also Mitchell v.
Jewel Food Stores, 568 N.E.2d 827, 835 (Ill. 1990) (“Defendant’s
own manual demonstrates that defendant knows how to spe-
cifically reserve to itself the discretion it feels it needs.… If de-
fendant wants to reserve sole discretion to discharge any em-
ployee for any reason at any time, defendant could simply say
so.”). It is therefore “reasonable to infer” that the omission of
a comparable term in Section 8.1 implies the authority to ter-
minate employees under Section 8.1 is not at the Board’s dis-
cretion. See Right Field Rooftops, 870 F.3d at 690.
In sum, we find defendants’ reliance on the above cases
unavailing because of critical factual differences between
those cases and the one before us. Accordingly, we hold the
Master Agreement between Cheli and his employer contains
an express provision requiring the District terminate him only
for cause. Moreover, as discussed below, the remainder of the
Agreement’s provisions further buttress our interpretation of
Section 8.1 to allow defendants to fire Cheli only for cause.
B. Section 8.5
The Master Agreement’s reference to a probationary pe-
riod reinforces our view that the Master Agreement creates a
protectable property interest. “We have previously read con-
trasting employment-manual provisions regarding proba-
tionary and nonprobationary employees to create tenure
20 No. 20-2033
rights.” Cromwell, 713 F.3d at 365. We do so when a probation-
ary period is “coupled with other language independently
suggesting an expectation of continued employment.” Id.
“The Illinois Supreme Court reached the same result … where
an employment manual specifically reserved the employer’s
power to discharge probationary employees ‘for any reason
at the sole discretion of the employer,’ but also specified that
nonprobationary employees ‘shall not be suspended, dis-
charged or otherwise disciplined without just cause.’” Id. (ci-
tations omitted) (quoting Mitchell, 568 N.E.2d at 831, 835).
Section 8.5 provides for a 120-day probationary period
during which a new employee “will be an at-will employee”
and the “Board, at its discretion, may terminate the employ-
ment.” If new employees are specifically classified as “at-will”
employees here, then by implication employees serving more
than 120 days are not. Otherwise, Section 8.5’s language
would be superfluous. Cheli worked longer than 120 days, at
which point his property rights vested.
Cromwell v. City of Momence, cited by defendants, does not
undermine this conclusion because we do not rely solely on
Section 8.5’s probationary period to hold that the Master
Agreement vested Cheli with a protectable right. In Cromwell,
an employee pointed to a probationary period for new em-
ployees to argue that he had a constitutionally protected in-
terest. 713 F.3d at 364. The first relevant provision described a
probationary period for new employees during which they
could be fired for any reason. Id. The second provided that
any officer who violated state or federal law, any city rules or
regulations, or any order of the police chief may be disci-
plined, and set out the procedures by which discipline could
be implemented. Id. We rejected Cromwell’s argument that
No. 20-2033 21
“these two provisions” read together “imply that all non pro-
bationary officers have tenure and thus may be terminated
only for cause.” Id. Unlike Cromwell, the probationary period
here is not the keystone of our holding. See id. (noting “[t]he
mere presence of a probationary period does not by implica-
tion create an enforceable property right to continued em-
ployment for nonprobationary employees”). Far from “too
much of a stretch,” Section 8.5 of the Master Agreement, when
“coupled with other language [in Section 8.1] independently
suggesting an expectation of continued employment,” gives
rise to an “affirmative, clear promise” of a property interest.
Id. at 364, 365.
Any other reading of Section 8.5 would undermine Arti-
cle VII. The district court and defendants would have us read
Section 8.1 as providing no restrictions on the District’s ability
to remove its employees (despite the “reasonable cause” lan-
guage), yet simultaneously interpret Section 8.5’s clear decla-
ration that a subset of employees is “at will” as meaningless
because, in its view, all employees are at-will. Only through
linguistic gymnastics could we harmonize these two read-
ings. The sensible reading is this: Under Section 8.5, new em-
ployees in their first 120 days of employment are at-will em-
ployees who the District may terminate for any reason. Under
Section 8.1, employees who have worked longer than 120
days are no longer at-will employees and the District may ter-
minate them only for “reasonable cause.” Thus, Section 8.5
supports our holding that Cheli had a protected property in-
terest.
C. Sections 8.2–8.4
Finally, Sections 8.2–8.4 also bolster our view that the Mas-
ter Agreement gives rise to a protected property interest. We
22 No. 20-2033
stated in Border: “Illinois courts have recognized that the lack
of termination and grievance procedures weighs strongly
against a finding of for cause employment. But this does not
mean that the presence of such procedures indicates for cause
employment, especially in the face of clear ‘no employment
contract’ language.” 75 F.3d at 275 (citation omitted) (citing
Ahlgren v. Blue Goose Supermarket, Inc., 639 N.E.2d 922, 927 (Ill.
App. Ct. 1994)). However, “articulated procedures are a fun-
damental and necessary part of an employment contract
which provides for an employee’s discharge or dismissal only
upon just cause.” Ahlgren, 639 N.E.2d at 927. Therefore, the
presence of such procedures, as in Sections 8.2–8.4, in con-
junction with other provisions in the Master Agreement, can
still support the existence of for-cause employment, espe-
cially in the absence of a “no employment” disclaimer. See
Border, 75 F.3d at 275.
The Illinois Supreme Court addressed grievance proce-
dures in Griggsville-Perry Community Unit School District No. 4
v. Illinois Educational Labor Relations Board, 984 N.E.2d 440 (Ill.
2013). In Griggsville, the court approved an arbitrator’s inter-
pretation of a collective bargaining agreement finding the em-
ployees were for-cause employees. Id. at 448. Notably, “a just-
cause standard for dismissal was expressly discussed during
negotiations over the collective-bargaining agreement but
was not adopted,” yet the arbitrator concluded that a provi-
sion outlining disciplinary procedures would be “rendered
meaningless” if the plaintiffs were at-will employees. Id. at
446. The provision at issue required that the school district
hold a meeting for any employee disciplined and provide
“reasonable prior written notice of the reasons for such a
meeting and shall be entitled to have a personal representa-
tive at said meeting.” Id. at 444–45. The Illinois Supreme Court
No. 20-2033 23
held “the arbitrator’s decision drew its essence from the col-
lective-bargaining agreement.” Id. at 448.
In this case, the Master Agreement contains specific provi-
sions providing for disciplinary proceedings and requiring
the defendants to provide a “written explanation” for their
decisions. Sections 8.2–8.4 flesh out what the District must af-
ford employees it disciplines and discharges: “[a] confer-
ence,” “the right to a representative,” and “[a] written expla-
nation.” While Sections 8.2–8.4 may not alone give Cheli a
protected property interest, as with Section 8.5, they are com-
pelling support for the existence of a property interest, espe-
cially considering that the Master Agreement and the Manual
do not elsewhere include a “no employment contract” dis-
claimer that applies to Cheli. See Border, 75 F.3d at 275.
Consistent with the arbitrator and Illinois Supreme
Court’s decision in Griggsville-Perry, if Cheli were an at-will
employee it would render Sections 8.2–8.4 “meaningless.” See
id. If all of defendants’ employees are at will, then defendants
would never need a reason to discharge them and thus never
be required to provide its employees with the procedures laid
out in the Master Agreement. This interpretation is belied by
the fact that the Board applied those procedures to Cheli in
practice, determining that Cheli was incompetent even
though (according to its argument before this Court) such a
finding was never necessary. Furthermore, the Master Agree-
ment includes quintessential “just cause” language in Sec-
tion 8.1 (“reasonable cause”) in addition to the disciplinary
procedures in Sections 8.2–8.4. The provisions here therefore
create an even stronger expectation of job security than in
Griggsville-Perry because the collective bargaining agreement
24 No. 20-2033
there did not contain “just cause” language and, in fact, the
parties expressly rejected such language during negotiations.
Defendants seek to downplay the logical force of
Griggsville-Perry because it concerned the “extremely limited”
review of an arbitrator’s decision, id. at 498, and because the
Master Agreement here does not contain an arbitration provi-
sion. Be that as it may, the Illinois Supreme Court’s view that
the arbitrator did not simply adopt his “own brand of … jus-
tice,” id. at 498, reassures us of the propriety of interpreting
Sections 8.2–8.4 to support our finding of for-cause employ-
ment.
Having determined that the Master Agreement created a
protected property interest in Cheli’s employment, we leave
to the district court to address the remaining elements of
Cheli’s procedural due process claim.
III. Conclusion
If we accepted defendants’ construction of the Master
Agreement, then defendants could conceivably always cir-
cumvent its bargained-for strictures for the purposes of due
process. If we accept that defendants need not find “reasona-
ble cause” under Section 8.1, then the protections of Sec-
tions 8.2–8.4 would never attach because defendants would
not have to explain or provide any process for terminating at-
will employees. Conveniently by their reading, this would en-
compass all of their employees. To make any sense of the Mas-
ter Agreement, we would need to go even further and read
Section 8.5—declaring some employees as at-will employ-
ees—as somehow applying to all employees, nullifying the
rest of Article VII. To prevent this illogical result, we REVERSE
No. 20-2033 25
the judgment of the district court and REMAND to the court for
further proceedings consistent with this opinion.