Trejo, Leonard J. v. Shoben, Edward J.

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 00-3341
LEONARD J. TREJO,
Plaintiff-Appellant,
v.
EDWARD J. SHOBEN, JESSIE G. DELIA,
LARRY R. FAULKNER, LOUIS F. FITZGERALD, et al.,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Central District of Illinois.
No. 98-2085—David G. Bernthal, Magistrate Judge.
____________
ARGUED FEBRUARY 26, 2002—DECIDED JANUARY 30, 2003
____________
Before FAIRCHILD, COFFEY and KANNE, Circuit Judges.
COFFEY, Circuit Judge. Leonard J. Trejo was a non-
tenured assistant professor of psychology at the Univer-
sity of Illinois Urbana-Champaign campus who received
three one-year appointments to his position in each of the
school years between 1994-95 and 1996-97 before he got
into trouble necessitating his discharge. After the Univer-
sity terminated him in August 1997, Trejo filed suit under
42 U.S.C. § 1983, alleging that the University violated
his constitutional rights to freedom of speech and due
process under the Constitution of the United States and the
State of Illinois. The district court dismissed Trejo’s free
2 No. 00-3341
speech claims and granted the University’s motion for sum-
mary judgment with respect to Trejo’s due process claims.
We affirm.
I. FACTUAL BACKGROUND
In August 1994, as part of an affirmative action plan,
Leonard J. Trejo was appointed to teach as a probationary,
non-tenured assistant professor in the department of
psychology at the University of Illinois. Trejo’s appointment
was subject to renewal at the end of each school year, and
he was eligible to be considered for tenure only if he met the
University’s expectations for teaching courses, researching
and publishing articles, and serving as a mentor to stu-
dents over the course of several years. The University
came to the conclusion after an investigation that Trejo
had failed to meet these expectations. In October 1995, the
chairman of the psychology department, Edward J. Shoben,
received several complaints from students about Trejo’s
misconduct and, after an investigation, expressed con-
cerns about Trejo’s “trustworthiness, lack of judgment, and
serious problems relating to students, especially women.”
Thereafter, Shoben drafted a report of his conclusions
and findings and contacted the University’s administra-
tors and recommended Trejo’s termination. The adminis-
trators then proceeded to conduct their own independent
investigation and, after review, refused to renew Trejo’s
contract.
The complaints that Shoben received concerning Trejo
were made by several female graduate students who
approached Shoben upon their return from an aca-
demic conference in Toronto, Canada, they attended with
Trejo in October 1995. Trejo and the Illinois students
were lodged in the same hotel that was also the site of
the academic conference, and following the first day of
presentations, they met with several of the conference
No. 00-3341 3
attendees for late night drinks and a meal at the hotel’s
restaurant and bar. Over the next 45 minutes, Trejo
attempted to regale his dinner companions with a dis-
cussion of a documentary recently aired on a local televi-
sion station concerning the sexual behavior of primates.
Trejo vociferously opined that there is a relationship
between pregnancy, orgasms, and extramarital affairs
and went on to advocate sex outside marriage and extra-
marital affairs. Trejo claims that his intent was to foster
an academic debate over sociobiological theories of mating
by asking whether “we can take an animal model of sex-
ual behavior and extrapolate it to humans.” He character-
ized his comments as being intellectual and clinical in
nature, saying that he focused exclusively on matters of
reproductive biology and scrupulously avoided the use of
questionable or offensive language. It is interesting to
note that in his deposition before trial, Trejo refused to
concede that his statements—which incorporated the use
of hand gestures to demonstrate various parts of the fe-
male anatomy, including the cervix—were objectionable
in any respect.
Every other man and woman seated at the table that
evening at the conference was offended by Trejo’s speech,
concluding that he was “out of control” and that his re-
marks were little more than thinly veiled sexual solicita-
tions directed at the female graduate students in the
group. One graduate student, Leun Otten, stated that
Trejo was using the conversation as a way to broach “mat-
ters related to sex.” Graduate student Jennifer Isom and
Wichita State University Professor Darryl Humphrey
concurred with Otten’s sentiments, stating that Trejo
(who was married at the time) was trying to persuade
the women at the table to embrace the notion that it is
acceptable to have an extramarital affair. When referring
to Trejo, a third graduate student, Timothy Weber, stated
that the entire conversation “had sexual undertones” and
4 No. 00-3341
a propositioning aspect, adding that Trejo “seemed to
be testing the waters, possibly trolling for females or
finding companionship for the evening.” Graduate stu-
dent Blair Hicks further was of the opinion that Trejo
seemed to be taking some sort of sadistic pleasure in
making the female students feel uncomfortable. Indeed,
once Trejo left the table, an embarrassed Professor
Humphrey subsequently felt it necessary to apologize to
the students for Trejo’s behavior.
Trejo seemed indifferent to the concerns of his dinner
companions, for he continued his pattern of sprinkling off-
color comments into conversations during the next sev-
eral days of the conference. For example, later that same
evening Trejo invited graduate students Jennifer Keller
and Brandy Isaacks to play cards in his hotel suite, and
after they grew tired Trejo commented that the female
students should undress, declaring, “Well, it’s either we’re
going to quit playing cards or we’re all going to get naked
and go to bed!” The next night, as Trejo and Humphrey
were preparing to attend a party in the hotel’s grand
ballroom, Trejo proceeded to make vulgar and disgust-
ing comments and jokes about women, using coarse and
derogatory language that we refuse to repeat in this
opinion.1 He also suggested to Humphrey that they
should “go to the president’s party and see if we can find
some women to bring back!” Later on, while in atten-
dance at the party, Trejo struck up a conversation with
a Stanford University professor who knew Isaacks and
commented that he “wanted to get [his] hands on her.”
In addition to making sexually charged comments in the
presence of male and female professors and students, Trejo
1
If one is inclined to read a more graphic recitation of Trejo’s
vulgar language and derogatory remarks and jokes about women,
he or she might examine paragraph 99 of Trejo’s Response To
Defendants’ Statement Of Undisputed Facts. (Doc. No. 41 ¶ 99.)
No. 00-3341 5
also saw fit to engage in childish behavior while attend-
ing a party in Humphrey’s hotel suite. After lamenting
the fact that he was having marital problems, Trejo de-
cided that he wanted to entertain his guests and drink a
can of beer while standing upside-down on his head.
Trejo repeatedly pleaded with Keller to pour the beer in
his mouth but she refused. Trejo eventually found an-
other person to serve him alcoholic beverages in this
peculiar manner as he proceeded to become intoxicated.
Meanwhile, the party continued into the wee hours of the
morning until about 2 a.m., and at this time, Trejo tele-
phoned Isaacks and awoke her, impersonated a male
graduate student, and invited her to his room to play cards.
Not surprisingly, Isaacks declined the invitation and re-
mained in her room.
In the days following the Illinois delegation’s return to
the campus, Trejo persisted with his unwelcome invita-
tions to engage Keller and Isaacks in extracurricular
social activities. Trejo sent the two women an e-mail in-
viting them to play euchre at a local tavern. In the e-mail,
titled “Obligatory Challenge,” Trejo alluded to his impend-
ing divorce by referring to his wife as “my soon-to-be-ex
(STBX)” and writing, “Well, my STBX has always said I’m
a male chauvinist. Perhaps that’s why I’d like to challenge
J & B to a rematch at euchre. How about it guys?” The
students responded that they were not interested and
thereafter consulted their faculty mentor, Gregory Miller,
and told him about Trejo’s lascivious behavior in Toronto.
The students ultimately decided to meet with Shoben and
expressed their concerns about Trejo’s continuous pattern
of unwelcome, inappropriate, boorish behavior and re-
quested Shoben’s assistance in resolving these problems.
The students went on to explain they felt uncomfortable
and awkward around Trejo and were avoiding contact with
him by steering clear of his office and were refusing to en-
roll in his classes. They added that they were reluctant to
6 No. 00-3341
approach Trejo directly and file a formal grievance in
view of the fact that he served on a committee that dis-
tributed research grants and they were in fear of possible
retaliation.
Shoben proceeded to investigate the complaints, and
after speaking with more than a dozen individuals, he
concluded that Trejo had behaved boorishly around numer-
ous female graduate students ever since his arrival in
Urbana in August 1994. Shoben learned, among other
things, that Trejo solicited at least three students for
dates, even going so far as to invite one woman to “dress
up in something skimpy” and take a motorcycle ride with
him on the beach. Shoben also became aware during his
investigation that Trejo had similar difficulties with
this type of conduct at his prior place of employment at
the Navy Personnel Research and Development Center
in southern California.
Shoben spoke with Trejo on three separate occasions
between December 1995 and March 1996 in an attempt
to inform Trejo of the allegations and invite a response.
Trejo took umbrage and denied the charges, but as Shoben
proceeded with the investigation, one of his main con-
cerns was that Trejo appeared to be less than truthful.
For example, Trejo initially refused to admit contacting
Isaacks in the middle of the night and criticized Shoben
for believing that he was “the kind of person who would
do something like call a female graduate student at 2 a.m.
pretending to be someone else.” However, Trejo later ac-
knowledged calling Isaacks—but stated that it was only
a joke. Shoben also learned that Trejo contacted Profes-
sor Humphrey, reminded him that they were “buddies,”
and attempted to persuade him to recant certain state-
ments he made to Shoben about the Toronto incident.
Based on this information, as well as the fact that Trejo, in
response to a question, told Shoben that he was unaware
No. 00-3341 7
of any reason why the female graduate students would
file false charges against him at the time, Shoben came
to the conclusion that Trejo had engaged in a series of
unprofessional actions, alienated several graduate stu-
dents and faculty members within the department, and,
furthermore, refused to accept responsibility for his mis-
conduct. Thereafter, Shoben prepared a written summary
of the results of his investigation and gave a copy to Trejo
and the dean of the college, Jessie G. Delia, and recom-
mended that Trejo be terminated. “[T]he reasons for this
recommendation,” Shoben stated in a letter to Trejo, “have
to do with your trustworthiness, your professional judg-
ment, and your relations with graduate students. In my
judgment, your performance on all three of these dimen-
sions has been unsatisfactory.”
Delia met personally with Trejo and discussed his pat-
tern of misconduct, including his behavior at the hotel/bar
and his midnight phone call to Isaacks while they were
attending the conference in Toronto. Even though he was
not obligated to, Delia granted Trejo an opportunity to
prepare a written response to Shoben’s recommendation,
as Trejo was on a probationary, non-tenured status. Trejo
obtained legal counsel and submitted an 8-page typewrit-
ten response along with numerous materials and several
letters from individuals of the belief that he should be
allowed to retain his position with the University. In May
1996, Dean Delia and a faculty advisory committee re-
viewed these materials, conducted an independent re-
view of Shoben’s findings, and thereafter voted against
renewing Trejo’s probationary appointment. Trejo filed a
notice of intent to appeal the committee’s decision and
received several extensions in order that he might submit
additional material for consideration by the University.
Despite receiving the extra time he requested, Trejo
failed to submit any additional materials, and the faculty
committee met a second time in August 1996 and again
8 No. 00-3341
recommended termination. Thus, pursuant to University
policy requiring that non-tenured assistant professors
must receive at least one year’s notice of non-reappoint-
ment, Trejo was advised of the University’s decision in mid-
August 1996 and was terminated August 20, 1997.
II. DISCUSSION
A. Free Speech Claims
Initially we address Trejo’s claim that the University
violated his rights to freedom of speech when it refused
to renew his annual teaching appointment. Trejo argues
that his “discussion at the conference in Toronto amongst
faculty, post-doctorate and graduate students relating to
human sexuality is protected under the First Amendment
to the Constitution of the United States,”2 and that it
was unconstitutional for the University to terminate him
on the basis of the statements he made.3 We reject Trejo’s
argument, for we are convinced that while Trejo’s com-
plaint alleges that he engaged in expressive activity pro-
2
Trejo also argues that the University violated his right to free
speech under Article I § 2 of the Illinois Constitution of 1970. Our
analysis of Trejo’s state and federal free speech claims is iden-
tical, for the Constitution of the State of Illinois protects an
individual’s right to free speech only to the same extent that
such speech is protected by the Constitution of the United States.
Rubin v. Ikenberry, 933 F. Supp. 1425, 1439 (C.D. Ill. 1996).
3
Trejo’s complaint alleged that the University violated two
separate rights: his right to freedom of speech and his right to
academic freedom. The academic freedom claim is subsumed
by the broader free speech claim, for “the First Amendment
guarantees are sufficiently broad to provide some protection for
what has been called ‘academic freedom.’ ” Zykan v. Warsaw
Cmty. Sch. Corp., 631 F.2d 1300, 1304 (7th Cir. 1980). Cf.
R. DWORKIN, FREEDOM’S LAW 247-50 (1996).
No. 00-3341 9
tected by the First Amendment, the facts in this record
conclusively establish that his speech was related to
matters of private concern and thus cannot form the
basis of a constitutional challenge. See Connick v. Myers,
461 U.S. 138 (1983); Pickering v. Board of Educ., 391 U.S.
563 (1968).
The First Amendment protects an individual’s right to
freedom of expression. Furthermore, because of our mis-
trust of “laws that cast a pall of orthodoxy” over education-
al institutions, Keyishian v. Board of Regents, 385 U.S. 589,
603 (1967), the First Amendment protects the right of
faculty members to engage in academic debates, pursuits,
and inquiries and to discuss “ideas, narratives, concepts,
imagery, [and] opinions—scientific, political or aesthetic—
[with] an audience whom the speaker seeks to inform, edify,
or entertain.” Swank v. Smart, 898 F.2d 1247, 1251 (7th
Cir. 1990). However, a public employee’s freedom of speech
on matters of public concern is far from absolute and all-
encompassing, and the exercise of protected speech may
nevertheless serve as the basis for termination if the
employer articulates convincing reasons for taking such
action. See Waters v. Churchill, 511 U.S. 661 (1994); Con-
nick, supra; Pickering, supra.In cases like the one before us, where the employer brings
a motion to dismiss the employee’s free speech claim on
the basis of the pleadings rather than on the facts in the
record, the speech may be presumed to involve a matter
of “public concern” if it touches upon “any matter for which
there is potentially a public” interest. Eberhart v. O’Malley,
17 F.3d 1023, 1026 (7th Cir. 1994). “The purpose of the
‘public concern’ requirement is to distinguish [between]
grievances of an entirely personal character from state-
ments of broader interest concerning one’s job, rather
than to fix the boundaries of the First Amendment.” Id.Indeed, we have previously explained that
10 No. 00-3341
when the Supreme Court in its cases establishing
and bounding the rights of public employees to exercise
free speech limited those rights to speech on matters
of “public concern,” they did not mean matters of
transcendent importance, such as the origins of the
universe or the merits of constitutional monarchy;
they meant matters in which the public might be in-
terested, as distinct from wholly personal griev-
ances . . . and casual chit-chat.
Dishnow v. School Dist. of Rib Lake, 77 F.3d 194, 197 (7th
Cir. 1996).
We have cautioned that “it would be a rare case indeed
where the pleadings as a whole would permit judgment
as a matter of law” in favor of the employer. Gustafson
v. Jones, 117 F.3d 1015, 1019 (7th Cir. 1997). Thus, we held
in Eberhart that an assistant state’s attorney in Illinois
properly alleged that he was speaking on a matter of
“public concern” when his complaint pled that he was
writing a fictional novel concerning the criminal justice
system. We stated that a public employee’s decision to
write a book of fiction dealing with the criminal justice
system is presumptively protected by the First Amend-
ment and that the trial judge erred when dismissing the
complaint before the defendant filed an answer setting
forth what legitimate reasons, if any, it may have had
for terminating the plaintiff. 17 F.3d at 1027-28.
When we apply Eberhart’s reasoning to the facts pled in
Trejo’s complaint, we may assume that Trejo spoke on
matters that warrant some level of constitutional protec-
tion and that the University could not have fired Trejo
for his comments unless it offered a reason for doing so.
See id.; Gustafson, 117 F.3d at 1018-19. Cf. Krizek v.
Board of Educ., 713 F. Supp. 1131, 1139 (N.D. Ill. 1989).
Based on Trejo’s pleadings in this case—which we accept
as true when deciding a motion to dismiss rather than a
No. 00-3341 11
motion for summary judgment—we are told that Trejo was
a non-tenured assistant professor of psychology who was
in attendance at an off-campus professional conference
along with other graduate students and professors in his
area of academic expertise; that he met these individuals
at a restaurant/bar for a late night dinner and some
conversation; that they engaged in a spirited “academic
and intellectual debate” precipitated by a public television
broadcast dealing with research about the mating rituals
of humans and primates; that none of the students con-
sidered it necessary to object or express discomfort with
his remarks that evening; and that he was thereafter
unlawfully terminated in retaliation for his speech. (Compl.
¶¶ 12-22, 44-48.) Thus, a reading of the Complaint in the
light most favorable to Trejo reveals his claim that his
civil rights were infringed upon when he was discharged
by administrators who allegedly capitulated to the pres-
sure placed on them by certain feminist graduate stu-
dents who felt that his speech was too provocative, insen-
sitive, and/or “politically incorrect” to remain on the fac-
ulty at the University of Illinois.
Nevertheless, we affirm the trial court’s decision to
dismiss Trejo’s free speech claims (Counts II and IX) and
make clear that the University would have been entitled
to summary judgment prior to trial. We have the discre-
tion to affirm the district court’s decision to dismiss part
of a multi-count complaint if: (1) subsequent discovery
in connection with a separate claim clearly reveals that
the defendant-appellee would have been entitled to sum-
mary judgment on the claim that was dismissed; and (2)
the plaintiff-appellant fails to identify what additional
favorable facts might possibly have been revealed through
additional discovery if the claim had not been dismissed.
See American Nurses Ass’n v. State, 783 F.2d 716, 729
(7th Cir. 1986); see also Kitzman-Kelley v. Warner, 203 F.3d
454, 461-62 (7th Cir. 2000) (Posner, J., dissenting).
12 No. 00-3341
The gravamen of Trejo’s free speech claim is identical to
those portions of his substantive due process claim in
which he argues that the University violated his civil
rights when terminating him on the basis of his com-
ments at the restaurant/bar in Toronto as well as his
vulgar behavior on numerous occasions both before, dur-
ing, and after the conference, which came to light after
Shoben’s investigation was undertaken and completed. (Pl.
Br. at 19.) After Trejo availed himself of his right to
ample discovery in connection with the due process claim,
the district judge granted the University’s motion for
summary judgment, finding that Trejo failed to produce
even a scintilla of evidence to support his theory that he
was terminated due to his speech rather than his pattern
of misconduct. Furthermore, Trejo neither in his appel-
late brief nor at oral argument maintained that he could
have uncovered additional materials to overcome the
facts set forth by the University in support of its posi-
tion that he “was nonreappointed because he lied about
his activities, because of the totality of his behavior to-
ward the female graduate students, and because of con-
cerns about his trustworthiness, professionalism, and
judgment.” (Def. Br. at 21.) Thus, we may properly con-
sider whether the University is entitled to summary
judgment on Trejo’s First Amendment retaliation claim
based upon the record before us. See American Nurses, 783
F.2d at 729.
The undisputed facts in this record demonstrate that
Trejo’s comments were focused almost exclusively on
matters of private concern, thus belying the allegations
in his complaint and thus requiring that we grant sum-
mary judgment in favor of the University. The chair of
the University’s psychology department, Edward J.
Shoben, explained that after the completion of his review
and investigation he was convinced that the totality of
Trejo’s statements and actions mandated termination,
No. 00-3341 13
including: (1) Trejo’s remarks to a Stanford University
professor that he “wanted to get his hands” on Illinois
graduate student Brandy Isaacks; (2) Trejo’s decision to
telephone Isaacks in the middle of the night, conceal his
identity, impersonate another graduate student, and ask
her to play cards with him; (3) Trejo’s initial refusal to
admit that he telephoned Isaacks despite the fact that
witnesses were present when he placed the phone call; (4)
Trejo’s statement to a Wichita State University profes-
sor that they should “go to the president’s party and see
if we can find some women to bring back” to their hotel
room; (5) Trejo’s attempt to persuade graduate students
to pour a beer in his mouth while he stood upside down
on his head; (6) Trejo’s sexual comment and declaration
during a late night card game with two female stu-
dents that “we’re going to quit playing cards or we’re all
going to get naked and go to bed!”; (7) Trejo’s attempts to
solicit dates from graduate students, including his deci-
sion to send the students an e-mail that referred to his
impending divorce and challenged the students to an
“obligatory rematch” of the previously discussed card
game; (8) Trejo’s attempt to persuade the Wichita State
professor to recant certain statements he made to Shoben
about Trejo’s conduct; and (9) Trejo’s statements that
there is a relationship between pregnancy, adultery, and
sexual pleasure.
“Casual chit-chat between two persons or otherwise con-
fined to a small group . . . is not protected” under the
First Amendment. Swank, 898 F.2d at 1251. Thus, the off-
color comments Trejo made while he was attending par-
ties, playing cards, or frequenting taverns around the
University—such as his comment that he wanted to “get
his hands” on one graduate student and “get naked” or
“drink some good beer” with another—is casual, idle, and
flirtatious chit-chat that may not form the basis of a
First Amendment claim. See id.; Contreras v. City of Chi-
14 No. 00-3341
cago, 920 F. Supp. 1370, 1388 (N.D. Ill. 1996). Furthermore,
after review of all the facts and circumstances dealing
with Trejo’s conduct during his three years as a non-
tenured probationary employee at the University of Illi-
nois, we hold that Trejo’s statements in Toronto regard-
ing the sexual behavior of non-human primates likewise
failed to address an issue of public concern under Con-
nick and Pickering. The statements were simply parts
of a calculated type of speech designed to further Trejo’s
private interests in attempting to solicit female compan-
ionship and, at the same time, possibly to irritate the
other graduate students to whom he was speaking. The
record before us makes clear that Trejo was prattling on
before a table of acquaintances who had been drinking
alcoholic beverages in a noisy restaurant/bar rather than
lecturing to students in a classroom setting on a topic
relevant to their field of study. The individuals seated at
the table all agreed that Trejo’s off-color remarks were
delivered in a flirtatious manner peppered with double
entendres and ribald references, while the record is bar-
ren of any evidence besides Trejo’s self-serving statements
that the remarks were designed to serve any truly peda-
gogic purpose. Rather, Trejo left the lounge to play euchre
with a group of students immediately after his speech,
thus further establishing that his chit-chat throughout
the evening primarily served to whittle away the time
and further his own peculiar interests rather than any
matter of public concern. Accordingly, the scales are tipped
in favor of the University, and we are convinced that it
is entitled to summary judgment on Trejo’s speech-based
claims. See Wales v. Board of Educ., 120 F.3d 82 (7th
Cir. 1997); Smith v. Fruin, 28 F.3d 646 (7th Cir. 1994); Keen
v. Penson, 970 F.2d 252 (7th Cir. 1992); Swank, 898 F.2d
at 1251; Rubin, 933 F. Supp. at 1443-44.
No. 00-3341 15
B. Federal Due Process Claims
We are also convinced that the trial judge properly
granted summary judgment in favor of the University on
the claims brought by Trejo under the Due Process Clause
of the Fourteenth Amendment. As we noted ante at 1,
Trejo alleges that the University violated his substantive
due process rights when terminating him, in part, because
of his expressive activity in Toronto. Although we ex-
plained in Part II.A that none of Trejo’s statements were
protected as speech about matters of public concern,
Trejo nonetheless argues that the University’s decision
violated his substantive due process rights by imposing
an “utterly unreasonable” or “arbitrary” restriction upon
his right to speak on matters of private concern.
“A restriction on a form of liberty not explicitly codified
in the Bill of Rights or singled out by the courts for special
protection under such rubrics as ‘right to privacy’ and
‘fundamental rights’ violates the due process clause only
if [it is] utterly unreasonable—that is what ‘arbitrary’
means in this setting—and it is less likely to be found so
if it is a regulation of public employees than if it is a
regulation of private citizens.” Swank, 898 F.2d at 1252. We
hold that it was proper for the University to terminate
Trejo because of his conduct and comments during the
academic conference in Toronto during October 1995,
including but not limited to the off-color remarks to the
graduate students at the restaurant/bar in Toronto, as
well as his conduct before and after the conference which
did not come to light until such time as the investiga-
tion was completed.
Trejo’s conduct and statements in Toronto, when viewed
in conjunction with the pattern of unprofessional con-
duct, poor judgment, and lack of trustworthiness demon-
strated throughout his term of employment, had the effect
of alienating professors and graduate students on the
16 No. 00-3341
Illinois campus and at other institutions across the nation.
Professors at Stanford and Wichita State universities
advised Shoben that the University’s ability to attract
talented female graduate students might suffer if Trejo’s
behavior became widely known among prospective ap-
plicants. Furthermore, several of the female graduate
students within the department stated that they feared
Trejo might retaliate against them for spurning his roman-
tic advances, that they felt uncomfortable around him, and
that they began avoiding him by refusing to walk past
his laboratory as well as declining to enroll in his courses.
It goes without saying that a university has an interest
in fostering a collegial educational environment while
doing everything within its power to maintain its reputa-
tion in the academic community both on campus and
around the nation. Thus, we are convinced that it was
eminently reasonable for the University to take action
against Trejo under these circumstances. See Korf v. Ball
St. Univ., 726 F.2d 1222 (7th Cir. 1984). “Common sense,
reason and good judgment should have made him cognizant
of the fact that his conduct could and would be cause for
termination.” Id. at 1227.
In reaching this conclusion, we reject Trejo’s claim that
the University violated his civil rights when it partially
relied upon Shoben’s recommendation as a basis for termi-
nation. Although Shoben held face-to-face meetings with
Trejo on three separate occasions in an attempt to dis-
cuss the graduate students’ allegations, Trejo spends a
significant portion of his brief arguing that Shoben con-
ducted a one-sided investigation because he harbored
personal grudges against Trejo and was committed to
“leading the lynch mob” against him. (Pl. Br. at 19-23.) We
disagree with Trejo’s contention and find this argument to
be without merit, for even if we assume that Shoben
was brimming over with animosity, we must not lose
sight of the fact that Shoben’s reasoning and recommen-
No. 00-3341 17
dation to terminate probationary employee Trejo was
reviewed by two separate, independent faculty commit-
tees which conducted their own investigations of the
charges and likewise came to the conclusion that Trejo’s
misconduct warranted his removal from the faculty. The
two administrators who were responsible for hiring Trejo
as part of the University’s affirmative action plan (Dean
of the College Jesse G. Delia and Provost Larry R. Faulk-
ner) also exchanged e-mails and met personally with Trejo
on a number of occasions while discussing his concerns
about Shoben’s alleged biases but ultimately agreed that
Trejo should be terminated because of the contents of
the record before them concerning Plaintiff-Appellant
Trejo’s gross misconduct exhibited during his three years
as a non-tenured professor. The University’s investigation
and hearings went well beyond what was required by the
Constitution, and we reject Trejo’s argument that his
substantive due process rights were violated. See Eiland
v. Trinity Hosp., 150 F.3d 747, 752 (7th Cir. 1998); Willis
v. Marion County Auditor’s Office, 118 F.3d 542, 547-
48 (7th Cir. 1997); see also Hamilton v. MCBOE, 122
F. Supp. 2d 1273, 1283-88 (M.D. Ala. 2000) (discussing
elements of vicarious “cat’s paw” liability).
We also disagree with Trejo’s contention that he was
deprived of his rights to procedural due process. Trejo
was a non-tenured probationary employee who was ap-
pointed to one-year contracts subject to annual re-
view and renewal by the University. Trejo argues that the
refusal to renew his appointment deprived him of prop-
erty and liberty interests in pursuing work as a public
educator. However, the law is eminently clear that non-
tenured professors within the University of Illinois
system are probationary employees who lack any consti-
tutionally protected property interest that would afford
them rights to due process. See Weinstein v. University of
Illinois, 811 F.2d 1091 (7th Cir. 1987); McElearney v.
18 No. 00-3341
University of Illinois, 612 F.2d 285 (7th Cir. 1979). Further-
more, an employee’s right to pursue his or her chosen
occupation is infringed only if “the ‘circumstances of the
discharge, at least if they were publicly stated, had the
effect of blacklisting the employee from employment in
comparable jobs.’ ” Townsend v. Vallas, 256 F.3d 661, 670
(7th Cir. 2001) (quoting Colazzi v. Walker, 812 F.2d 304,
307 (7th Cir. 1987)). The record is barren of evidence
indicating that the University publicized the basis for
terminating Trejo, much less blacklisted him. Indeed, after
Trejo left his non-tenured position at Illinois, he returned
to his native state of California and shortly thereafter
accepted a supervisory position paying $81,000 a year
with a research laboratory managed by a federal agency.
This is an increase of $32,000 over his salary as an assis-
tant professor. On the basis of the record before us, we
conclude that Trejo’s procedural process claims are frivo-
lous and that any harm that may come to him in the
future as a result of his professional misconduct at the
University of Illinois is solely of his own making.
C. State Due Process Claims
Although we determined in Part II.B that Trejo’s claims
fail under federal law, Trejo also argues that he was
deprived of his rights to due process under the Illinois
Constitution of 1970. The Illinois Supreme Court has
stated that it “labor[s] under no self-imposed constraint
to follow federal precedent in ‘lockstep’ in defining Illi-
nois’ due process protection.” People v. Washington, 665
N.E.2d 1330, 1335 (Ill. 1996). However, the Court has
stressed that it has interpreted its constitution to provide
citizens with greater protections than the federal consti-
tution only in those instances where it has “found an
appropriate basis to do so,” adding that “federal precedent
interpreting the federal due process clause is useful as
No. 00-3341 19
a guide in interpreting the Illinois provision.” Lewis E.
v. Spagnola, 710 N.E.2d 798, 812 (Ill. 1999).
Trejo has failed to cite, much less discuss, any case law
holding that an Illinois court has expanded and endowed
non-tenured university professors with due process
rights beyond those set forth by the Fourteenth Amend-
ment. In support of his claim of an entitlement to protec-
tion under the Illinois Constitution, Trejo has referred us
only to the following excerpt from the debates of two
delegates to the Sixth Illinois Constitutional Convention
of 1970:
MRS. LEAHY: I have several questions, Mr. Len-
non. It seemed to me that there has
been a great deal of development of
the due process interpretation in
the Federal Constitution in the
last 15 years, and the cases that
you referred to, to define ‘due pro-
cess,’ were quite old. Did your com-
mittee mean to incorporate the
recent interpretations of the Due
Process Clause of the Federal Con-
stitution into this clause?
MR. A. LENNON: Well, I don’t think anybody is try-
ing to incorporate by reference any-
thing. We are faced with whatever
the law is, and it may be different
by this afternoon at 3 o’clock than
it was yesterday, depending upon
what the Supreme Court is doing.
I think we all recognize that no
matter what concept or doctrine
you talk about, we have to live
with what the Supreme Court in-
terprets in particular cases.
20 No. 00-3341
3 RECORD OF PROCEEDINGS: 6TH ILLINOIS CONSTITUTIONAL
CONVENTION 1501 (June 4, 1970). These above-quoted
statements were made during a discussion about the
general nature of due process. The discussion focused on
the rights of unborn children, but contained absolutely
no reference to the rights of non-tenured professors within
the University of Illinois system, and thus has no rele-
vance to the issue before us. Based on our review of the
evidence in this record, we refuse to hold that the Illinois
Constitution’s Due Process Clause entitles such probation-
ary employees to additional rights beyond those provided
under federal law.
III. CONCLUSION
The record makes abundantly clear that the University
of Illinois terminated Professor Leonard J. Trejo because
his lack of professionalism, poor judgment, and insuffer-
able behavior around his colleagues and fellow graduate
students disrupted the educational process and tarnished
the University’s good name. Several administrators met
personally with Trejo before his discharge, thereby al-
lowing him greater procedural benefits than any to which
he was entitled as a non-tenured probationary employee.
We are convinced from our review that Trejo failed to
raise a genuine issue of material fact on his free speech
or due process claims under the Federal Constitution or
the Illinois Constitution. Accordingly, the administrators
at the University of Illinois were entitled to summary
judgment on each count of the complaint in this case.
The judgment of the district court is AFFIRMED.
No. 00-3341 21
FAIRCHILD, Circuit Judge, concurring. Plaintiff’s com-
plaint contained twelve counts. A magistrate judge con-
sidered pre-trial motions to dismiss and recommended
dismissal without prejudice of Counts II and IX through
XII, but denial as to other counts. The district judge
granted the motions to dismiss the counts recommended,
but with prejudice. The parties consented that the case
proceed before the magistrate judge. Certain counts were
withdrawn. Later the magistrate judge granted defen-
dants’ motion for summary judgment on the remaining
counts, III (denial of procedural due process), IV (violation
of substantive due process rights) and V (Section 1985(3)).
I have no trouble affirming as to those counts. The undis-
puted facts shown on summary judgment disclose that
defendants had acquired, without any violation of due
process, knowledge of a pattern of conduct by plaintiff
which they reasonably found unacceptable in a faculty
member.
Count II is founded on the First Amendment to the
federal constitution and Count IX on the constitution of
Illinois. Viewed on its face Count II should not, in my
opinion, have been dismissed. Separate analysis of Count
IX is unnecessary now.
The gist of Count II is that plaintiff was an assistant
professor of psychology; that he and a number of faculty,
post-doctoral and graduate students who were attending
a professional conference met at a bar in their hotel after
the close of the day’s scheduled activities; that they “en-
gaged in a conversation precipitated by a public televi-
sion broadcast dealing with the sexual behavior of non-
human primates and the implications of that research
for human sexual behavior”, that plaintiff “opined, based
upon said television broadcast and research, that there is
a relationship between pregnancy, orgasms, and extra-
marital affairs”; that the discussion was protected by the
First Amendment; and that plaintiff ’s speech was a sub-
22 No. 00-3341
stantial and motivating factor in the defendants’ decision
not to reappoint him.
The magistrate judge, in recommending dismissal of
Count II, concluded that “the social discussion to which
plaintiff contributed in the hotel bar does not consti-
tute a matter of public concern.” He characterized the dis-
cussion as “casual” and compared it to the conversation
considered in Swank v. Smart, 898 F.2d 1247, 1251 (7th Cir.
1990), finding it too remote from the marketplace of ideas.
The district judge agreed that “the social discussion at
the hotel bar did not involve a matter of public concern.”
I do not agree. Plaintiff’s theory may be bizarre, but
as described in Count II it purported to be a theory in the
field of psychology, offered by a person trained in that
field to a group of others with similar training. It was far
closer to the marketplace of ideas than the “employee
grievance concerning internal office policy” considered
in Connick v. Myers, 461 U.S. 138, 154 (1983) or the “con-
versation idle or flirtatious in character” considered in
Swank. I do not think the fact that the statement was
made in a bar or that the gathering was unplanned should
make a difference.
Evidence of gestures and innuendos in plaintiff’s con-
versation, later coming before the court in support of the
motion for summary judgment, but not alleged in Count
II, may well justify considering the bar episode in full
context as part of plaintiff ’s pattern of conduct properly
leading to non-reappointment, and defendants’ answer
would doubtless have so claimed if Count II had not been
dismissed. I write separately to make the point that as
a matter of pleading Count II should not have been dis-
missed.
No. 00-3341 23
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—1-30-03