Michalowicz, Ronald v. Village Bedford Park

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-3857
RONALD MICHALOWICZ,
Plaintiff-Appellant,
v.
VILLAGE OF BEDFORD PARK,
a municipal corporation,
DAVID R. BRADY, individually and
as Mayor of the Village of Bedford Park
and President of the Board of Trustees,
JOHN C. HOLLOWAY, individually and
as member of the Board of Trustees, et al.,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 06 C 2824—James F. Holderman, Chief Judge.
____________
ARGUED APRIL 12, 2007—DECIDED JUNE 11, 2008
____________
Before RIPPLE, EVANS, and SYKES, Circuit Judges.
SYKES, Circuit Judge. For 28 years Ronald Michalowicz
was a firefighter and fire inspector for the Village of
Bedford Park, Illinois. In 2003 he was diagnosed with an
often fatal form of tongue cancer. With the permission of
2 No. 06-3857
Bedford Park’s mayor, some of Michalowicz’s coworkers
began soliciting donations from local businesses to help
cover the cost of his treatment. Shortly after success-
fully completing treatment and returning to work,
Michalowicz was fired for accepting donations from
businesses subject to fire inspection and allegedly failing
to adequately inspect their properties.
Michalowicz maintains the procedures surrounding
his termination were constitutionally insufficient. Specifi-
cally, he contests whether he was given adequate notice
and opportunity to respond at his pretermination hearing,
and whether the body that presided over his posttermi-
nation hearing—the Village Board, the same body that
presided over his pretermination hearing—was biased
against him. However, Michalowicz also alleged in his
complaint that the Village did not comply with existing
state and municipal laws that would have addressed these
procedural defects. As long as adequate state-law remedies
exist for such random and unauthorized conduct, relief
may not be obtained in federal court. Because the Illinois
Administrative Review Act, 735 ILL. COMP. STAT. 5/3-101
et seq., authorizes review in state court and permits
either remand for rehearing or outright reversal of admin-
istrative decisions that are unsupported by the evidence
or legally defective, state law provides adequate remedies
for the violations Michalowicz alleges. We therefore
affirm the district court’s dismissal of Michalowicz’s
complaint for failure to state a claim.
I. Background
Michalowicz worked for the Village of Bedford Park as
a firefighter for 17 years and as a fire inspector for 11 years.
No. 06-3857 3
In October 2003 Michalowicz was diagnosed with a rare
and often fatal form of tongue cancer, which required
him to take a leave of absence for treatment from
March 2004 to January 2005. With the mayor’s approval,
two of Michalowicz’s coworkers began soliciting dona-
tions from local individuals and businesses to assist with
Michalowicz’s medical expenses. During his leave of
absence, their campaign raised approximately $25,000,
which was put into a special fund dedicated to paying
Michalowicz’s medical bills.
After successful treatment, Michalowicz returned to
work in January 2005. On July 20, 2005, he received a
letter from Sean Maloy, chief of the Village Fire Depart-
ment, informing him he was under investigation on
suspicion of having “accepted gifts of cash and/or prop-
erty from businesses or individuals associated with
businesses that are subject to fire inspection” and having
“failed to appropriately and adequately inspect facilities
and properties.” After receiving this notice, Michalowicz
was interviewed twice by a Village Attorney. On August
20, 2005, he received another letter from Maloy in-
forming him that Maloy planned to recommend his
termination at an upcoming Village Board of Trustees
meeting scheduled for August 25. This notice was accom-
panied by a document listing the charges against
Michalowicz and the statute and ordinances he was
alleged to have violated.
Michalowicz attended the August 25 board meeting
accompanied by an attorney. Michalowicz’s attorney
was allowed to make a statement on his behalf but was
not allowed to present any witnesses or evidence. Neither
Maloy nor the Village Attorney presented any information
regarding the evidence or witnesses against Michalowicz.
4 No. 06-3857
The meeting was simply adjourned after the statement by
Michalowicz’s attorney. The Board then reconvened on
September 1 and summarily terminated Michalowicz.
Shortly thereafter, Michalowicz received notice that he
was entitled to a posttermination hearing in accordance
with section 1-18-8 of the Village’s municipal code. That
hearing was held on April 5, 2006. Although section 1-18-8
required the hearing to be held before an independent
employee relations committee, it was instead conducted—
over Michalowicz’s objection—by the Village Board. At
the hearing Michalowicz was permitted to present evi-
dence and witnesses contradicting the Village’s allega-
tions and cross-examine the witnesses against him. The
Board upheld Michalowicz’s termination on May 4.
Michalowicz subsequently filed this action under 42
U.S.C. § 1983 alleging violations of the Due Process Clause
of the Fourteenth Amendment. He also filed for admin-
istrative review in Cook County Circuit Court. His federal
complaint raised two claims: that his pretermination
hearing was inadequate because it failed to comply
with constitutional requirements of notice and oppor-
tunity to respond, and his posttermination hearing
was inadequate because it was held before the same
biased Village Board as his pretermination hearing. His
pretermination claim specifically alleged he
was not permitted to present evidence or to call wit-
nesses; was not provided with any indication of the
specific evidence against him, nor given a list of the
Village’s witnesses nor the names of any complainants;
was not permitted to conduct any discovery [before,
during or after]; nor was provided any other pro-
cedural safeguard to which he was otherwise
entitled . . . .
No. 06-3857 5
The district court dismissed both claims with prejudice
under Rule 12(b)(6) of the Federal Rules of Civil Procedure
for failure to state a claim. In doing so the court character-
ized Michalowicz’s complaint as challenging only the
failure to follow governing ordinances and statutes, rather
than challenging the constitutionality of the procedures
provided in the ordinances or statutes themselves. Con-
cluding that the Village’s alleged failure to follow ap-
plicable law was random and unauthorized, the court held
that the state’s duty was not to prevent such misconduct,
but rather to provide adequate remedies after it occurred.
Because it deemed the remedies found in the Illinois
Administrative Review Act adequate, the court con-
cluded no due-process violation had been stated.
Michalowicz filed a motion to reconsider, but the court
denied his motion and reaffirmed the dismissal. This
appeal followed.
II. Discussion
We review a district court’s dismissal for failure to
state a claim de novo, accepting the allegations in the
plaintiff’s complaint as true and drawing all favorable
inferences for the plaintiff. Killingsworth v. HSBC Bank
Nev., N.A., 507 F.3d 614, 618 (7th Cir. 2007). To state a
procedural due-process claim, a plaintiff must allege
(1) deprivation of a protected interest, and (2) insufficient
procedural protections surrounding that deprivation.
Doherty v. City of Chicago, 75 F.3d 318, 322 (7th Cir. 1996).
However, because the relevant constitutional question is
whether sufficient state-law protections exist, not whether
sufficient protections were afforded, “ ‘[a] complaint does
not state a valid procedural due process objection . . . if
it does not include a challenge to the fundamental fair-
6 No. 06-3857
ness of the state procedures.’ ” Hamlin v. Vaudenberg, 95
F.3d 580, 583 (7th Cir. 1996) (quoting Daniels v. Williams,
474 U.S. 327, 339 (1986) (Stevens, J., concurring)).
It is undisputed that Michalowicz had a protected
property interest in his continued employment as a tenured
Village fire inspector. Thus, our concern is with the proce-
dural protections he was due—both predeprivation and
postdeprivation—when he was terminated. Because the
adequacy of pretermination procedures is dependent upon
the extent of posttermination procedures, see Swank v.
Smart, 898 F.2d 1247, 1256 (7th Cir. 1990) (“Only if there
is no provision for a post-termination hearing must the
pre-termination hearing provide all the procedural safe-
guards to which due process entitles a tenured public
employee.”), we first address Michalowicz’s claim that
his posttermination hearing did not comport with due
process.
A. Posttermination Hearing Claim
Michalowicz does not allege any inadequacy in the
procedures of section 1-18-8 of the Village’s municipal
code, see BEDFORD PARK, ILL., CODE § 1-18-8, which gov-
erned his posttermination hearing.1 Rather, he claims he
was denied due process because the Village allowed the
Board of Trustees—which he maintains was biased against
him—to conduct his hearing instead of an independent
1
As discussed in greater length in Part II-B, Michalowicz
questions whether section 1-18-8 should have governed his
termination due to his status as a union member. However,
there is no dispute that the Village has continuously con-
sidered Michalowicz entitled to its protections.
No. 06-3857 7
employee relations committee as required by section 1-18-
8. See id. (an employee relations committee member
may “[n]ot be a full time regular employee, part time
employee, or an elected or appointed official of the vil-
lage”).
This species of due-process claim is a challenge to the
“random and unauthorized” actions of the state officials in
question, i.e., to their unforeseeable misconduct in failing
to follow the requirements of existing law. See Strasburger
v. Bd. of Educ., Hardin County Cmty. Unit Sch. Dist. No. 1,
143 F.3d 351, 358 (7th Cir. 1998) (citing Parratt v. Taylor,
451 U.S. 527, 540 (1981)); see also Easter House v. Felder,
910 F.2d 1387, 1396-98 (7th Cir. 1990) (en banc) (discussing
Parratt in light of Hudson v. Palmer, 468 U.S. 517 (1984),
and Zinermon v. Burch, 494 U.S. 113 (1990)). Because such
misconduct is inherently unpredictable, the state’s obliga-
tion under the Due Process Clause is to provide suf-
ficient remedies after its occurrence, rather than to pre-
vent it from happening. See Doherty, 75 F.3d at 323 (“Where
state law remedies [to random and unauthorized con-
duct] exist, a plaintiff must either avail herself of the
remedies guaranteed by state law or demonstrate that
the available remedies are inadequate.”). Accordingly,
Michalowicz’s claim can stand only if Illinois law pro-
vides insufficient remedies for the violation he alleges.
“[W]e should not reject [a state-law remedy as inade-
quate] unless the remedy . . . can readily be characterized
as inadequate to the point that it is meaningless or nonexis-
tent and, thus, in no way can be said to provide the
due process relief guaranteed by the fourteenth amend-
ment.” Easter House, 910 F.2d at 1406. The state-law remedy
in question is the Illinois Administrative Review Act (“the
Act”), 735 ILL. COMP. STAT. 5/3-101 et seq., which estab-
8 No. 06-3857
lishes procedures for seeking state-court review of a
final administrative ruling.
Michalowicz maintains the Act fails to meet the low
threshold for adequacy because it provides that “[t]he
findings and conclusions of the administrative agency
on questions of fact shall be held to be prima facie true
and correct.” 735 ILL. COMP. STAT. 5/3-110; see also Birdsell
v. Bd. of Fire & Police Comm’rs of Litchfield, 854 F.2d 204,
209 (7th Cir. 1988) (stating that § 5/3-110 prevents em-
ployees from “challeng[ing] the factual bases for adminis-
trative decisions in post-termination judicial proceedings”).
Because the Act does not permit courts to take new evi-
dence outside the administrative record, Michalowicz
asserts, it provides no opportunity for a de novo hearing
before a new decision-maker should he prevail on his
claim that the Village Board was unauthorized or too
biased to preside over his posttermination hearing.
Michalowicz’s focus on his inability to introduce addi-
tional evidence on state-court judicial review under the
Act is unclear. His argument is not that his ability to
develop the factual record at his posttermination hearing
was circumscribed, but rather that the Village Board was
biased against him and therefore made inappropriate
credibility determinations and manifestly erroneous
conclusions despite the fully developed factual record. This
sort of error may be remedied by state-court review of
Michalowicz’s legal and factual challenges to the Village
Board’s action against him. Such review is the essence of
the Act, which permits review of “all questions of law and
fact presented by the entire record,” 735 ILL. COMP. STAT.
5/3-110; charges courts with “determin[ing] if the con-
clusion is against the manifest weight of the evidence,”
Comito v. Police Bd. of Chi., 739 N.E.2d 942, 948 (Ill. App. Ct.
No. 06-3857 9
2000); and provides authority to reverse if so, see 735 ILL.
COMP. STAT. 5/3-111(a)(5) (“The Circuit Court has power
to affirm or reverse the decision in whole or in part.”).
Illinois courts have recognized that the factual findings
of administrative bodies may be challenged by a claim of
bias or prejudice such as the one Michalowicz alleges. See,
e.g., Comito, 739 N.E.2d at 948 (“deferential standard [of
review of factual record] is not controlling where the
Board is prejudiced or biased against the claimant and
incapable of giving him a fair hearing”); A.R.F. Landfill, Inc.
v. Pollution Control Bd., 528 N.E.2d 390, 394 (Ill. App. Ct.
1988) (“Where . . . the administrative agency is engaged
in an adjudicatory capacity, bias or prejudice may be
shown if a disinterested observer might conclude that
the administrative body, or its members, had in some
measure adjudged the facts as well as the law of the case
in advance of hearing it.”). Moreover, while it is true, as
we recognized in Birdsell, that the Act does not permit
the reviewing court to engage in independent fact-finding,
it does permit the court to remand for additional fact-
finding if necessary, see 735 ILL. COMP. STAT. 5/3-111(a)(7)
(reviewing court may “remand for the purpose of taking
additional evidence when from the state of the record of
the administrative agency or otherwise it shall appear
that such action is just”), and “to give such other instruc-
tions as may be proper” on remand, id. § 5/3-111(a)(6). If
the reviewing court were to find bias or procedural impro-
priety on the part of the Village Board, a remand for a
de novo posttermination hearing in front of an unbiased
adjudicator would fit comfortably within these broad
powers.
Thus, the relief Michalowicz seeks—an independent
review of whether the evidence supports his termination
10 No. 06-3857
and whether the Village Board was biased or failed to
follow the prescribed procedure in connection with his
termination—falls squarely within the ambit of the Act,
both through the state court’s own review of the adminis-
trative record and through its authority to remand for
rehearing. Cf. Stachowski v. Town of Cicero, 425 F.3d 1075,
1078 (7th Cir. 2005) (“Illinois law afforded [the plaintiff]
all the process he was due . . . [through] administrative
review of the Board’s final decision under the Illinois
Administrative Review Act.”). Because the Act provides
adequate remedies for the alleged violation of existing
procedural requirements, Michalowicz has not stated a
due-process claim arising from his posttermination hear-
ing. See Schacht v. Wis. Dep’t of Corr., 175 F.3d 497, 503 (7th
Cir. 1999) (no procedural due-process violation results
if “[t]he availability of administrative remedies at the
hands of an unbiased decisionmaker” still exists), over-
ruled on other grounds by Higgins v. Mississippi, 217 F.3d 951(7th Cir. 2000).
B. Pretermination Hearing Claim
Although the scope of the right to a pretermination
hearing is dependent upon the adequacy of posttermi-
nation remedies, an independent right to a pretermination
proceeding does exist in this context. See Cleveland Bd. of
Educ. v. Loudermill, 470 U.S. 532, 542 (1985) (due process
“requires some kind of a hearing prior to the discharge of
an employee who has a constitutionally protected property
interest in his employment” (citations and quotations
omitted)). However, when adequate posttermination
proceedings exist, a pretermination hearing need only
provide “an initial check against mistaken decisions—
essentially, a determination of whether there are reasonable
No. 06-3857 11
grounds to believe that the charges against the employee
are true and support the proposed action.” Id. at 545-46; see
also Schacht, 175 F.3d at 503 (if “there is the opportunity
for full administrative review once a termination decision
has been reached, the pre-termination hearing can be
somewhat truncated”).
Michalowicz first maintains he was entitled to a full
panoply of protections pretermination because the
posttermination process guaranteed by section 1-18-8 is
not available to union members like himself. Section 1-18-8
provides that a posttermination hearing before an inde-
pendent employee relations committee is available “only
to nonunion employees,” and further states that “[t]he
terms and conditions of a collective bargaining agree-
ment shall govern all disciplinary matters involving
union employees.” Thus, it is only on account of alterna-
tive protections in his union contract that Michalowicz
might have opted out of section 1-18-8. Michalowicz
never suggests any collective bargaining procedure
governed or should have governed his termination, and he
acknowledges the Village consistently maintained he
was entitled to a section 1-18-8 hearing despite his union
status.2 Indeed, he received such a hearing, and we
have already determined Illinois law provides adequate
remedies for the alleged procedural violations attendant
to that hearing. Accordingly, sufficient posttermination
protections existed to justify a truncated pretermination
hearing.
2
Michalowicz challenges whether he received an adequate
section 1-18-8 hearing, but the only question relevant to his
pretermination rights is whether he was entitled to such a
hearing.
12 No. 06-3857
In its truncated form, “pretermination process need only
include oral or written notice of the charges, an explana-
tion of the employer’s evidence, and an opportunity for
the employee to tell his side of the story.” Gilbert v. Homar,
520 U.S. 924, 929 (1997) (citation omitted). Michalowicz
concedes he had notice of his August 25 pretermination
hearing and the charges he would face. He argues he was
not presented with any of the evidence supporting the
Village’s allegations against him and was not given an
adequate opportunity to develop and present his version
of the story. As to the latter argument, the additional
process Michalowicz requests—an opportunity to con-
duct discovery, present evidence and witnesses, and
confront witnesses against him—is process to which he
is not entitled in a truncated pretermination hearing. See
Baird v. Bd. of Educ. for Warren Cmty. Unit Sch. Dist. No. 205,
389 F.3d 685, 691 (7th Cir. 2004) (“[D]ue process does
not require an employer to provide full ‘trial-type rights’
such as the right to present or cross-examine witnesses
at the pre-termination hearing.” (citation omitted)). These
alleged pretermination hearing deprivations are not
valid grounds for a due-process claim.
As to the former argument, Michalowicz maintains his
pretermination hearing was governed by the Firemen’s
Disciplinary Act, which requires that a fireman be “in-
formed [prior to any administrative proceeding] of the
names of all complainants and all information necessary
to reasonably apprise [him] of the nature of the charges
and the preparation of a defense.”3 50 ILL. COMP. STAT.
3
The Village questions whether Michalowicz was entitled to
these protections since at the time of his termination he was
(continued...)
No. 06-3857 13
745/3.2. This law clearly entitles Michalowicz to what he
maintains he did not receive, namely, “an explanation of
the employer’s evidence.” Gilbert, 520 U.S. at 929. How-
ever, because Michalowicz admits on the face of his
complaint that this state law afforded him the constitu-
tional protection he alleges he was denied, any violation
of that law by the Village must be considered random
and unauthorized. We have already determined that
adequate legal remedies exist in Illinois law for such
unforeseeable violations; accordingly, Michalowicz has
not stated a pretermination claim upon which relief
could be granted.
As alleged in Michalowicz’s complaint, the scenario
surrounding his termination from the Bedford Park Fire
Department strikes us as troubling. But because state
law provides adequate remedies for the procedural viola-
tions Michalowicz alleges, he has failed to state a due-
process claim. The dismissal of his complaint is AFFIRMED.
3
(...continued)
employed as a fire inspector rather than a fireman. We need
not resolve this question for purposes of our review of the
Rule 12(b)(6) dismissal.
USCA-02-C-0072—6-11-08