Atterberry, Jeffrey v. Sherman, Leonard

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-4115
JEFFREY L. ATTERBERRY,
Plaintiff-Appellant,
v.
LEONARD SHERMAN, JOHN COGHLAN,
EMMONS RUSSELL, and ROBERT HEWSON,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Central District of Illinois.
No. 02 C 3088—Jeanne E. Scott, Judge.
____________
ARGUED OCTOBER 27, 2005—DECIDED JULY 7, 2006
____________
Before RIPPLE, KANNE, and WOOD, Circuit Judges.
KANNE, Circuit Judge. Jeffrey Atterberry was a high-
level employee within the Illinois Department of Profes-
sional Regulation (the “DPR”). After allegedly engaging
in misconduct, Atterberry was reassigned to perform the
duties of a low-level employee, all the while retaining his
salary and job classification as before. While some might
consider themselves lucky to be able to perform easier work
for the same amount of pay, Atterberry did not. He filed
this 42 U.S.C. § 1983 suit against his four superiors
(collectively, the “state actors”), claiming he was effectively
demoted from his position without due process. The district
2 No. 04-4115
court found the state actors were entitled to qualified
immunity. For similar reasons, we agree, and affirm.
I. HISTORY
Atterberry has worked for the DPR since 1984. Since
1995, he held the position of Public Service Administrator;
specifically, he was Chief of the DPR’s Enforcement Admin-
istration Unit (the “EAU”). He supervised about 10 employ-
ees, and he had his own office, car, and parking space.
An internal audit of the EAU was conducted around
February 1999. The auditor requested all flex time records
for everybody in the EAU. Atterberry responded that there
were no flex time records. It turns out only DPR investiga-
tors earned flex time, and the EAU did not have any
investigators. There was, however, a “practice” in place
in which EAU employees earned “comp time,” which was
informally referred to as flex time. Not only did Atterberry
not inform the auditor of this comp time, but as will be
discussed in more detail later, he allegedly took active steps
to keep this information from the auditor.
Atterberry’s troubles began a year later in March 2000
when his longtime administrative assistant complained to
defendant John Coghlan, the Director of Statewide Enforce-
ment of the DPR, about Atterberry’s conduct. Specifically,
the assistant stated Atterberry had instructed her a year
earlier to remove and hide all flex time records and not to
mention them to the auditors. She also complained that
Atterberry was often nowhere to be found during business
hours and that he had told her to submit false travel
vouchers on his behalf. She also reported being fearful of
retaliation, should Atterberry learn of her reporting this
information.
The next day, Coghlan met with Atterberry. Atterberry
denied any misconduct; he also conveyed that he believed
No. 04-4115 3
his statement to the auditor regarding the flex time records
was entirely accurate.
About a week later, Atterberry called his administrative
assistant into his office. The assistant had been giving
Atterberry the cold shoulder recently, and Atterberry
“wanted to clear the air.” What actually happened at that
meeting is subject to some dispute; suffice it to say, the
assistant felt threatened and upset as a result, and charac-
terized the meeting as a confrontation. She then complained
to Coghlan the next day, and reported that she was now
afraid of Atterberry.
That same day, Coghlan reassigned Atterberry out of the
EAU to perform the duties of an investigator “for the
operational needs of the Department.” Atterberry no longer
supervised any employees. He now had to share an office,
and he lost his car and parking space. He also was assigned
an old metal desk with a broken chair. However, his salary
and job classification (Public Service Administrator)
remained exactly the same. He was assigned (and he
fulfilled) the duties and responsibilities of an investigator,
and he was told the reassignment was temporary.
A short time after Atterberry’s reassignment, Atterberry
filed a claim with the Illinois Civil Service Commission (the
“Commission”), arguing he had been effectively demoted.
The Commission ultimately found “no demotion action has
been brought against you.” It also found no violation of the
“Code or Rules” and further stated it did not have jurisdic-
tion over Atterberry’s complaints regarding his working
conditions.
During this time, Atterberry filed several grievances
related to his alleged demotion and related working condi-
tions. Some of these were denied (including his demotion
grievance) or withdrawn, while others were resolved in
Atterberry’s favor. The most important action, however,
began on March 24, when the DPR opened an investigation
4 No. 04-4115
to determine whether Atterberry had engaged in miscon-
duct. Special counsel was retained, and the counsel’s report
was issued in July 2000. Defendant Leonard Sherman,
Director of the DPR, evaluated the report and determined
Atterberry had indeed engaged in serious misconduct.
Discharge proceedings were instituted, albeit not for several
months. They continued until December 2000. Written
responses were filed, and pre-termination hearings were
held in the Spring of 2001. Atterberry was discharged on
May 11, 2001. Atterberry appealed his discharge to the
Commission, which ordered in December 2001 that
Atterberry be reinstated due to a lack of evidence of
misconduct. In the end, Atterberry continued performing
the duties of an investigator until February 2001, when he
went on medical leave, a status he continues to hold today.
Atterberry then filed suit in the district court, claiming he
was effectively demoted without being afforded due process.
Atterberry alleged that the four state actors, in their
respective official capacities,1 violated Atterberry’s Four-
teenth Amendment right to due process. The district court
found there were genuine disputes of material facts as to
whether the state actors had infringed upon Atterberry’s
right to due process and whether he had been deprived of
property. However, the district court found the state actors
were entitled to qualified immunity, as Atterberry had
failed to show that, as of the date of Atterberry’s reassign-
ment, “an employee, who was reassigned to lesser but still
meaningful duties pending an investigation of alleged
wrongdoing by the employee, but who retained both his pay
and his job classification upon reassignment, had suffered
1
The other two state actors besides Sherman and Coghlan
were Emmons Russell and Robert Hewson, who, at separate
times, held the position of Deputy Director of Enforcement
Administration. They reported to Coghlan.
No. 04-4115 5
the loss of a clearly established property right in his employ-
ment.”
II. ANALYSIS
We review a district court’s grant of summary judgment
de novo. Isbell v. Allstate Ins. Co., 418 F.3d 788, 793 (7th
Cir. 2005) (citation omitted). Summary judgment is appro-
priate if “ ‘the pleadings, depositions, answers to interroga-
tories, and admissions on file, together with the affidavits,
if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a
judgment as a matter of law.’ ” Id. (quoting Fed. R. Civ. P.
56(c)); Ezell v. Potter, 400 F.3d 1041, 1046 (7th Cir. 2005)
(citation omitted); see Celotex Corp. v. Catrett, 477 U.S. 317,
322-23 (1986).
As an initial matter, we question whether Atterberry was
even demoted. As alluded to earlier, a significant portion of
Atterberry’s protected interest lies in the Illinois Personnel
Code, which provides that he could not be removed, dis-
charged, demoted, or suspended for more than 30 days
except for cause. See 20 ILCS § 415/11 (2000). It is undis-
puted Atterberry was not removed or suspended for more
than 30 days. He was discharged, but he was later rein-
stated. In accordance with Atterberry’s amended complaint,
his entire argument lies in his claim that he was effectively
demoted. He was relegated to the duties of a lowly investi-
gator, while he simultaneously retained his salary and
position as a Public Service Administrator. However, the
Commission found Atterberry was not demoted, at least
according to how that term is defined by the Illinois Admin-
istrative Code.
Furthermore, in Lyznicki v. Board of Education, School
District 167, Cook County, Illinois, 707 F.2d 949 (7th Cir.
1983), we addressed the definition of “demotion.” We
explained that if we accepted the employee’s argument,
6 No. 04-4115
“ ‘demotion’ would then mean a reduction in rank that did
not result in a lower salary—an odd meaning to impress on
the word. Demotion and reduction in rank must be syn-
onyms in the statute2 as they are in ordinary language.” Id.
at 952 (emphasis added). We also stated, without decid-
ing, that “[w]hether demotion without loss of pay would be
a ‘deprivation’ in a constitutional sense may be
doubted. . . .” Id. at 951. Considering this reasoning and the
finding of the Commission, it does sound odd to say
Atterberry was demoted (or to base his entire claim on
effective demotion, as opposed to constructive discharge),
given that he retained his salary and position. In any event,
we need not resolve this issue because qualified immunity,
the main focus of the parties’ arguments, more clearly leads
us to find in favor of the state actors.
In order to proceed against the state actors, Atterberry
must (1) adequately allege the violation of a constitu-
tional right, and (2) show the right was clearly established
at the time of the alleged violation, such that a reasonable
public official would have known that his conduct was
unlawful. See Delgado v. Jones, 282 F.3d 511, 515-16 (7th
Cir. 2002) (citing Harlow v. Fitzgerald, 457 U.S. 800, 818-19
(1982)). Although Atterberry is not required to point to a
case which precisely mirrors the facts of this case, he must,
at a minimum, “point to a closely analogous case decided
prior to the challenged conduct.” Sonnleitner v. York, 304
F.3d 704, 716 (7th Cir. 2002) (citation omitted).
First, the facts in this case, even when viewed in the light
most favorable to the plaintiff, simply do not show any
violation of a constitutional right. Atterberry claims that he
was deprived of a property interest in his position as Chief
of the EAU. In the absence of a contract, this right must be
rooted in state law. See Ulichny v. Merton Cmty. Sch. Dist.,
2
The statute at issue in that case, now codified at 105 ILCS
§ 5/10-23.8b, was a different one than that relied on by Atterberry.
No. 04-4115 7
249 F.3d 686, 700 (7th Cir. 2001) (holding that a property
interest in public employment requires a legitimate claim
of entitlement to that position rooted in an independent
source, such as contract or state law). But Illinois law only
protects employees of the DPR against “demotion” or
“discharge” without “cause.” 20 ILCS § 415/8b.16. In turn,
the Illinois Administrative Code defines “demotion” as the
“assignment of an employee to a vacant position in a class
having a lower maximum permissible salary or rate than
the class from which the demotion was made.” Ill. Admin.
Code tit. 80, § 302.470(a) (2002).
The application of these provisions to the facts of this case
leaves no ambiguity. Atterberry had no legitimate expecta-
tion grounded in state law that he would not be subjected to
the sort of personnel action taken against him. He did have
certain legitimate expectations; he could not be subjected to
reduction in salary or rate. He was not deprived of these
expectations. Consequently, he was not deprived of a
cognizable constitutional property interest.
Second, Atterberry carries the burden of demonstrat-
ing the existence of a clearly established constitutional
right. See Denius v. Dunlap, 209 F.3d 944, 950 (7th Cir.
2000) (citing Kernats v. O’Sullivan, 35 F.3d 1171, 1176 (7th
Cir. 1994)). Atterberry relies on three cases to carry this
burden, namely Head v. Chicago School Reform Board of
Trustees, 225 F.3d 794 (7th Cir. 2000), Levenstein v.
Salafsky, 164 F.3d 345 (7th Cir. 1998), and Parrett v. City
of Connersville, Indiana, 737 F.2d 690 (7th Cir. 1984).3 We
agree with the district court that these three cases did not
clearly establish the existence of a constitutional right at
the time Atterberry was reassigned on March 24, 2000.
For our purposes, Head established nothing. Atterberry
argues that in Head, we held “a loss of position which
3
It is important to note Atterberry relied on these three cases,
and only these cases, before the district court.
8 No. 04-4115
impedes future job opportunities or has other indirect
effects on future income constitutes a property deprivation.”
This is a mischaracterization of the case. First, we actually
stated, “[w]e have recognized that a loss of position that
impedes future job opportunities or has other indirect
effects on future income can inflict an actionable depriva-
tion of property.” Head, 225 F.3d at 803 (citing Swick v. City
of Chicago, 11 F.3d 85, 86 (7th Cir. 1993)) (emphasis
added). But this statement was contained in dicta, and had
no effect on the outcome of the case. The very next sentence
in Head reads, “We need not definitively answer whether
Head has adequately established that he possessed a
protected property interest in remaining Pope Elementary’s
principal through the end of his contract, however, since we
agree with the district court that Head’s challenges to the
adequacy of the procedures afforded him prior to his
removal are without merit.” Id. We simply assumed for
purposes of our analysis that Head “might still have had a
constitutionally protected property interest in remaining in”
the position of principal. Id. (emphasis added). Because our
discussion in Head contained no further analysis concerning
what circumstances may or may not create a constitution-
ally protected property interest or right, it is a far cry to
claim the case held as Atterberry does. Because we did not
engage in any further discussion, there is no way the state
actors, or a reasonable person, could discern from Head that
they were violating a clearly established constitutional
right.
On appeal, Atterberry is quick to point to a fourth case to
demonstrate a clearly established constitutional right. He
argues the court in Head, in adopting the view explained
above, “relied upon this court’s holding in Swick v. City of
Chicago, 11 F.3d 85, 86 (7th Cir. 1993) which was decided
seven years before the Head case and long before the
conduct at issue in this case occurred.” But Swick is of little
benefit to Atterberry, either. The only relevant statement
No. 04-4115 9
made in Swick we can discern is that “[w]e can imagine a
case in which a period of forced inactivity impeded promo-
tional opportunities or had other indirect effects on post-
retirement income . . ., but that is not argued . . . .” Swick,
11 F.3d at 86 (citation omitted). Atterberry misstates this
statement as the holding from the case, but it was clearly
dicta.
More importantly, the statement in Swick addressed
a period of forced inactivity, specifically, being involuntarily
placed on sick leave which did not result in any pecuniary
loss. Atterberry was not placed in a like situation of forced
inactivity; rather, he continued performing legitimate
duties for the DPR, and was compensated the same as
before the reassignment of his duties. Swick, even less so
than Head, did not put the state actors, or any reasonable
person, on notice that they would be violating a clearly
established constitutional right of Atterberry’s. It is appar-
ent Head broadened the scope of the language from Swick,
but not broadly enough to encompass Atterberry’s situation.
It is not until Sonnleitner in 2002 that we broadened the
language from Swick enough to arguably apply to
Atterberry’s situation. This happened too late to help
Atterberry’s claim.
We further fail to see how Parrett and Levenstein, the two
other cases Atterberry cited below, clearly established a
constitutional right for Atterberry. Both Parrett and
Levenstein involved situations concerning constructive
discharge, not constructive demotion. At no time has
Atterberry complained he was constructively discharged, so
Atterberry certainly faces an uphill battle in relying on
constructive discharge cases to argue his right not to be
constructively demoted was clearly established.
Atterberry argues the cases are sufficiently similar to
provide a fair warning to the state actors that their ac-
tions violated a constitutional right. Atterberry goes so far
10 No. 04-4115
as to argue the only difference between those two cases and
his is that the employees in Levenstein and Parrett were
eventually terminated or retired, whereas Atterberry
subsequently went on medical leave. A closer review of
the two cases reveals, however, that the differences are
much more significant than Atterberry acknowledges. In
Parrett, Parrett was formerly the chief of detectives for a
police department, but he was reassigned to line captain.
737 F.2d at 693. He was forced to work in a windowless
room (formerly a closet) and was assigned no work. Id. We
did find Parrett was constructively discharged. Id. at 694.
In effect, his working conditions were so miserable that
he was forced to quit. His enforced idleness was humiliat-
ing, as his supervisors were determined that he should
perform no police work “but just twiddle his thumbs in the
closet.” Id.
We found the situation in Levenstein to be very similar to
that in Parrett. Levenstein was an internationally recog-
nized physician and professor. Levenstein, 164 F.3d at 348.
After an investigation into his alleged misconduct,
Levenstein was forbidden from seeing patients for over
11 months and was eventually assigned the petty task of
reviewing old medical training videos. Id. at 351.
Levenstein argued he was constructively discharged
because of the combination of the sham process his em-
ployer followed as well as the extensive suspension that was
imposed. Id. He also argued he was never given an ade-
quate opportunity to respond to the allegations against him.
Id. We found the employer’s decision to forbid Levenstein
from seeing patients and forcing him to review old videos to
be equivalent to the situation in Parrett in which the police
officer was assigned to a closet with no work to do. Id. This
conclusion makes sense in a constructive discharge situa-
tion, as both employees were essentially prevented from
performing tasks related to their respective areas of
employment.
No. 04-4115 11
Atterberry’s situation is distinguishable on several
different fronts from both Parrett and Levenstein, so many
so that it would be unreasonable to assume the state actors
had fair warning from them to know their actions were
violating a clearly established constitutional right. It is once
again important to note that Atterberry makes no claim of
constructive discharge. Furthermore, he was performing
tasks within the same department as he worked before, and
he was performing legitimate and necessary duties for his
employer. He was not placed into a closet, or made to
perform make-work or tasks that served no real purpose.
Rather, he worked as an actual investigator, working at the
same desk and in the same office as other investigators,
while performing the same duties. He also retained the
salary he had before. We find his situation is too far
removed from those in Parrett and Levenstein to put the
state actors, or any reasonable person, on notice that their
conduct was violating a constitutional right at that time.
III. CONCLUSION
For the reasons set forth above, the decision of the district
court is AFFIRMED.
12 No. 04-4115
RIPPLE, Circuit Judge, concurring. I agree completely
with the court’s conclusion that the facts of this case,
when viewed in the light most favorable to the plaintiff,
simply do not show a violation of a constitutional right.
Upon reassignment to the position of investigator, Mr.
Atterberry was deprived of his title as Chief of the DPR’s
Enforcement Administration Unit, as well as certain job
responsibilities. However, Mr. Atterberry can claim no valid
property interest, rooted in state or contract law, in either
his title or his job responsibilities. The applicable Illinois
statute proscribes a public employee’s “demotion” without
cause, 20 ILCS § 415/8b.16; in turn, “demotion” is defined
narrowly by the Illinois Administrative Code as the reas-
signment to a position “having a lower maximum permissi-
ble salary or rate,” which did not occur in this case. Ill.
Admin. Code tit. 80, § 302.470(a) (2002).
I write separately, however, to express my view that the
court’s further inquiry into whether the constitutional right
claimed was clearly established at the time of the alleged
violation is unnecessary and inconsistent with Supreme
Court precedent. The Supreme Court has advised that, to
proceed in the face of a qualified immunity defense, a
plaintiff must establish that there was a violation of a
constitutional right; only if such a showing is made should
the court then reach the question of whether that constitu-
tional right was clearly established at the time of the
violation. See Saucier v. Katz, 533 U.S. 194, 201 (2001)
(instructing the federal courts to “turn[] to the existence
or nonexistence of a constitutional right as the first
inquiry. . . . If no constitutional right would have been
violated were the allegations established, there is no
necessity for further inquiries concerning qualified immu-
nity”). In light of our conclusion that no violation of a
constitutional right has been established in this case, the
principal opinion’s ensuing analysis of Head v. Chicago
School Reform Board of Trustees, 225 F.3d 794 (7th Cir.
No. 04-4115 13
2000), Levenstein v. Salafsky, 164 F.3d 345 (7th Cir. 1998),
and Parrett v. City of Connersville, Indiana, 737 F.2d 690
(7th Cir. 1984), is premised on merely hypothetical facts
and, under the methodology mandated by the Supreme
Court, unnecessary.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—7-7-06