Kevin Carmody v. Board of Trustees of the Unive

In the
United States Court of Appeals
For the Seventh Circuit
No. 13-2302
KEVIN R. CARMODY,
Plaintiff-Appellant,
v.
BOARD OF TRUSTEES OF THE UNIVER-
SITY OF ILLINOIS, et al.,
Defendants-Appellees.
Appeal from the United States District Court for the
Central District of Illinois.
No. 12-CV-2249 — Michael P. McCuskey, Judge.
ARGUED DECEMBER 3, 2013 — DECIDED MARCH 28, 2014
Before POSNER, MANION, and HAMILTON, Circuit Judges.
HAMILTON, Circuit Judge. Plaintiff Kevin Carmody worked
for the University of Illinois for 25 years until he was fired for
reasons involving a security breach of the university’s email
system. After unsuccessfully appealing his discharge,
Carmody filed this suit against the university’s board of
trustees and several university officials claiming that they
violated his rights under the Due Process Clause of the
2 No. 13-2302
Fourteenth Amendment and under an Illinois statute designed
to protect whistle-blowers. The district court dismissed
Carmody’s complaint with prejudice under Federal Rule of
Civil Procedure 12(b)(6) for failure to state a claim upon which
relief can be granted. Carmody has appealed.
We review de novo a district court’s grant of a motion to
dismiss, construing the complaint in the plaintiff’s favor. Sung
Park v. Indiana Univ. School of Dentistry, 692 F.3d 828, 830 (7th
Cir. 2012). While we take the facts alleged in the complaint to
be true, we also consider attached exhibits and take into
account any contradictions. Phillips v. Prudential Ins. Co. of
America, 714 F.3d 1017, 1019–20 (7th Cir. 2013). For a case at the
pleading stage, we have here an unusually detailed record of
events because the complaint includes numerous exhibits
regarding Carmody’s termination.
We conclude that the district court’s dismissal was prema-
ture with respect to one aspect of Carmody’s due process
claim: that he was not given an adequate pre-termination
hearing. Carmody has plausibly alleged that his pre-termina-
tion opportunity to be heard was meaningless because he
could not answer the university’s crucial questions or respond
to its accusations without violating a state court order that
required him not to discuss the key subject. The university
acted to fire Carmody on the same day the state court modified
its order to allow him to respond to the charges, so the modifi-
cation came too late to help him. Also, Carmody has alleged
that he was actually fired based in part on a charge for which
he had no prior notice and opportunity to be heard. We
therefore reverse this one portion of the district court’s
No. 13-2302 3
judgment and remand the case for further proceedings. We
affirm the judgment in all other respects.
I. Sufficiency of the Pre-Termination Process
A. Factual Allegations
For the last 22 years of Carmody’s employment with the
University of Illinois, he was manager of systems services in
the Department of Industrial and Enterprise Systems Engineer-
ing. According to Carmody’s complaint and numerous
attached exhibits, the university’s official reasons for firing him
involved a security breach of the university’s email system, a
breach connected to a state court lawsuit Carmody was then
pursuing against a university professor, David Goldberg.
Carmody says that while his lawsuit against Professor
Goldberg was pending, he discovered several printed emails
in the newspaper box outside his home. The emails contra-
dicted an affidavit that Professor Goldberg’s defense attorney
had filed in the case, an affidavit by another professor,
Deborah Thurston. Carmody gave the emails to his lawyer,
who then filed a motion of some kind to which he attached the
emails, designating them “Group Exhibit A.” Carmody denies
knowing how the emails came to be in his newspaper box.
(Carmody’s claim in his lawsuit against Goldberg was appar-
ently that the professor had assaulted him, though the nature
of the claim is irrelevant to Carmody’s firing and the case
before us. Carmody’s suit against Goldberg has since been
dismissed.)
The emails Carmody found were between university
employees, including Professor Thurston, and all of them
4 No. 13-2302
concerned Professor Goldberg. According to Carmody’s
federal complaint, the state court judge ordered as follows
regarding the emails:
[T]he Court is going to order that Group Exhibit A
[the Thurston emails] be placed under seal pending
litigation of any further claims of privilege or rele-
vance, and the Court is further going to enter a
protective order on the parties that there is to be no
secondary dissemination of any of the contents of Group
Exhibit A as the court has described them, beyond the
respective litigation files of the three lawyers here.
(Emphasis added.) The three lawyers were Carmody’s lawyer,
Goldberg’s lawyer, and a lawyer for Thurston. Both professors’
lawyers were provided by the university.
Carmody then received a pre-termination letter dated July
19, 2010. It explained that he was being investigated for
misconduct, that he was suspended with pay immediately, and
that if the charges spelled out in the letter were substantiated,
they could result in discipline up to and including immediate
termination of employment. As far as the substance of the
charges went, the letter said:
It is alleged that you attempted to use the substance
of the email messages for non-University related
purposes and without permission. Furthermore,
there are open questions regarding how you came to
be in possession of these documents, specifically
whether you obtained them through improper
access.
No. 13-2302 5
The July 19 letter went on to say that Carmody would have an
opportunity to respond to the charges at a meeting later that
month.
On July 28th, university officials held a pre-termination
meeting with Carmody, who brought his lawyer, Robert
Kirchner. At that meeting, Carmody alleges, the university
officials said they intended to question him about the contents
of the emails in Group Exhibit A. Keeping in mind that we are
reviewing a Rule 12(b)(6) dismissal, we must give Carmody
the benefit of conflicting information and allegations about
what happened in the meeting. We therefore assume that
university officials intended to question Carmody about the
contents of the emails, as well as how he received them, and
that both subjects were important to the pending decision
about what action to take against Carmody.
Carmody’s lawyer summarized his version of the meeting
in an August 3 letter to counsel for the university:
This letter will summarize the meeting of July 28th,
in which you were a participant. [Two university
officials] had advised, and you then confirmed that
they were in possession of a copy of a document
ordered sealed by Judge Leonard and that you, and
they, intended to question Kevin Carmody about the
contents of, and substance contained in, that docu-
ment. I advised that I would not permit Mr.
Carmody to violate Judge Leonard’s order by
discussing or disclosing the contents of the sealed
materials and that by insisting that he do so, Univer-
sity personnel would be acting in violation of the
6 No. 13-2302
order as well. You disagreed and advised that the
“University is not a party to that case.” We ad-
journed the meeting with an agreement that I would
send this letter to you, await your reply, and then
seek direction from the Court. I will await your
reply.
The university’s counsel wrote in response:
You are correct in that the University has copies of
“Exhibit A,” which consist of University documents.
The University is now investigating whether or not
any University policies have been violated and/or
security measures breached in the acquisition or use
of those documents. [University officials] attempted
to ask your client questions about the documents in
his possession, which he declined to answer because
of your interpretation of the Judge’s ruling.
I advised that I did not interpret the Judge’s ruling
as you did. It is my understanding that the Judge
sealed the documents … because of the concerns
with how the documents were obtained … . I do not
believe it was the intent of the Judge to prevent the
University from using its documents as necessary in
order to determine if there has been a breach of
University security and/or a breach of trust and
responsibility of any University employees … .
I would be happy to join you in a motion for clarifi-
cation of the judge’s order if you feel that is neces-
sary. In the meantime, the University will proceed
with its investigation. If your client reconsiders
No. 13-2302 7
participating in this process, please let me know.
Otherwise, his refusal to participate may be consid-
ered in the investigation.
Attorney Kirchner began efforts to modify the state court
order to allow Carmody to respond to the university’s accusa-
tions and threat of termination. The record does not reflect
whether he took the university’s lawyer up on her offer to join
him in a motion for clarification, though the court modified its
order about two months later, on the same day that Carmody
was fired.
The investigation was conducted by the university’s
Academic Human Resources department and was completed
in early September 2010. The investigators submitted a report
on September 7 to university officials. They recommended that
Carmody’s employment be terminated. The report explained
that, regardless of how Carmody had obtained the emails in
Group Exhibit A, “he did not immediately report the breach of
security” that must have been perpetrated. Carmody also had
“attempted to use the substance of the email messages … for
non-University purposes and without permission,” and it was
“more probable than not that Mr. Carmody obtained the
documents in ‘Group Exhibit A’ through improper access.”
On September 9, attorney Kirchner sent a letter to two
university lawyers regarding the September 7 report. He
contended that the recommendation to fire his client was based
in part on a new charge: that Carmody had failed to report a
security breach upon receiving the emails. Kirchner asked for
an opportunity for Carmody to respond to this new charge.
Carmody alleges that no opportunity was provided.
8 No. 13-2302
Notice was sent to Carmody on September 23, 2010 that his
employment was terminated. The letter also said he could
appeal that decision to the associate provost for human
resources. According to Carmody’s complaint, the state court
lifted its restrictions on discussing Group Exhibit A the very
day he was fired.
In his complaint in this federal case, Carmody alleges that
he was not given sufficient notice and opportunity to respond
to the charges against him before he was fired. The district
court concluded that Carmody had not stated a due process
claim because he had been given an opportunity to respond to
the charges at the July 28 meeting but declined to take it.
Carmody v. Board of Trustees of the Univ. of Illinois, No. 12-CV-
2249, 2013 WL 2145878, at *8 (C.D. Ill. May 15, 2013). Moreover,
the court explained, Carmody had adequate notice before that
meeting of the charge that he failed to report a security breach.
Although the charge was not explicitly leveled until after the
meeting, Carmody was aware that his possession of the emails
was being investigated. According to the court, that was
sufficient notice of the later charge of failure to report a
security breach. Id. at *9.
B. Analysis
A public employee who can be fired only for good cause
has a property interest in his or her job and may be deprived
of that property interest only with due process of law. See
Gilbert v. Homar, 520 U.S. 924, 928–29 (1997); Cleveland Board of
Educ. v. Loudermill, 470 U.S. 532, 538–39 (1985); Board of Regents
of State Colleges v. Roth, 408 U.S 564, 576–78 (1972); Harbaugh v.
Board of Educ. of City of Chicago, 716 F.3d 983, 986 (7th Cir. 2013).
No. 13-2302 9
For purposes of the motion to dismiss and this appeal, the
parties agree that Carmody had a property interest in his job.
The university therefore could not deprive him of that prop-
erty without due process of law.
“The fundamental requirement of due process is the
opportunity to be heard ‘at a meaningful time and in a mean-
ingful manner.’” Mathews v. Eldridge, 424 U.S. 319, 333 (1976),
quoting Armstrong v. Manzo, 380 U.S. 545, 552 (1965); see
Baird v. Board of Educ. for Warren Cmty. Unit School Dist. No. 205,
389 F.3d 685, 690 (7th Cir. 2004); Schultz v. Baumgart, 738 F.2d
231, 235 (7th Cir. 1984). The nature and extent of the process a
public employee is due before termination depend on the
adequacy of any post-termination hearing that was available.
Loudermill, 470 U.S. at 545–46; Bodenstab v. County of Cook,
569 F.3d 651, 663 (7th Cir. 2009). Because we conclude in Part
II below that Carmody was given a full opportunity to contest
his firing in a post-termination hearing, before he was fired he
was entitled under Loudermill to only “oral or written notice of
the charges against him, an explanation of the employer’s
evidence, and an opportunity to present his side of the story.”
Loudermill, 470 U.S. at 546.
Even where there is a robust post-termination procedure,
though, a meaningful opportunity to be heard before the
employer decides on termination is a critical protection. The
purpose of a pre-termination hearing is to provide “an initial
check against mistaken decisions—essentially, a determination
of whether there are reasonable grounds to believe that the
charges against the employee are true and support the pro-
posed action.” Loudermill, 470 U.S. at 545–46. Additionally,
“[e]ven where the facts are clear, the appropriateness or
10 No. 13-2302
necessity of the discharge may not be; in such cases, the only
meaningful opportunity to invoke the discretion of the
decisionmaker is likely to be before the termination takes
effect.” Id. at 543; accord, Hudson v. City of Chicago, 374 F.3d
554, 560 (7th Cir. 2004); Duchesne v. Williams, 849 F.2d 1004,
1008 (6th Cir. 1988) (en banc).
The Supreme Court’s view that a post-termination opportu-
nity to try to change an employer’s mind will be less meaning-
ful is supported by common sense. It will be harder to con-
vince an employer to reverse a decision to fire someone than to
make sure the initial decision is fair and thoughtful. Whether
that reluctance to change one’s mind is based on concerns
about appearing indecisive or admitting a mistake, or on
logistical reasons or other factors, the reluctance is real.
The Court’s observation is also consistent with what has
been shown by decades of behavioral research: once an
individual or group has made a decision to take a particular
course of action, it becomes harder and harder to change
course, even in the face of powerful conflicting evidence and
reasons. See generally, e.g., Daniel Kahneman, Thinking Fast
and Slow 80–85, 245–54 (2011) (describing confirmation bias,
biased assimilation, and sunk-cost effects on decision-making);
Geir Kirkebøen, Erik Vasaasen & Karl Halvor Teigen, Revisions
and Regret: The Cost of Changing Your Mind, 26 J. Behavioral
Decision Making 1, 1 (Jan. 2013) (summarizing large body of
research that demonstrates “people’s reluctance to change their
minds”); Craig A. Anderson, Belief Perseverance, in Encyclope-
dia of Social Psychology 109, 109–10 (Roy F. Baumeister &
Kathleen D. Vohs eds. 2007), and many sources cited in these
No. 13-2302 11
works. That’s why a meaningful opportunity to be heard
before termination is so important.
Carmody makes two arguments that the university did not
comply with the minimal requirements of Loudermill before
firing him. He first argues that at the July 28 meeting, he did
not have a meaningful opportunity to respond to the charges
he was aware of because the state court order in the Goldberg
case forbade him from discussing the contents of the emails in
Group Exhibit A. Second, he argues that the university added
the charge that he failed to report a security breach after the
July 28 meeting and did not give him an opportunity to
respond to this new charge before he was fired, even though he
requested such an opportunity.
Both of these are at least plausible theories sufficient to
survive the defendants’ motion to dismiss. We consider first
the effect of the state court order. Attorney Kirchner’s letter
summarizing the July 28 meeting, which is part of the com-
plaint’s allegations, says that Carmody faced questions about
the “substance contained in” the emails in Group Exhibit A.
The state court judge’s order prohibited any secondary
dissemination of the contents of those emails beyond the
litigation files of the attorneys directly involved in the state
court action. We must treat as at least plausible the possibility
that Carmody would have violated the state court order if he
had answered at least some of the university officials’ ques-
tions.
If indeed Carmody would have needed to violate the state
court order to give his side of the story, he has plausibly
alleged that he had no meaningful opportunity before the
12 No. 13-2302
termination decision to respond to the most serious charge
against him.
Courts have recognized that a public employer may be
required to accommodate certain temporary obstacles, such as
a serious illness, that prevent an employee from responding to
pending charges. See Calderón-Garnier v. Rodríguez, 578 F.3d 33,
38 (1st Cir. 2009) (“We do not doubt that at some point a health
condition could prevent an individual from meaningfully
presenting her side of the story.”); Buckner v. City of Highland
Park, 901 F.2d 491, 495 (6th Cir. 1990) (“Buckner was not
suffering from any mental or physical disability which pre-
vented him from offering his response to the complaint.”);
Galloway v. Louisiana, 817 F.2d 1154, 1158 (5th Cir. 1987)
(plaintiff who claimed he could not respond to employer’s
charges pre-termination because he was hospitalized might
have been correct, except that he abandoned an opportunity to
respond after his release).
That recognition is sound. The general constitutional
standard is that an employee with a property interest is
entitled to notice of the employer’s reasons and a meaningful
opportunity to respond before the employer decides to
terminate the employment. Domiano v. Village of River Grove,
904 F.2d 1142, 1148–49 (7th Cir. 1990) (reversing grant of
summary judgment to employer because brief pre-termination
telephone call did not constitute a meaningful opportunity to
respond to charges); see generally Loudermill, 470 U.S. at 543;
Mathews, 424 U.S. at 333. An employee who is silenced tempo-
rarily by an illness or injury has no meaningful opportunity to
respond. Carmody has alleged here that he was silenced
temporarily not by an illness or injury but by a court order,
No. 13-2302 13
enforceable with contempt sanctions and other penalties,
intended to protect the privacy interests of non-parties.1
Adding further support to Carmody’s theory are the
indications that his lawyer was working with the university’s
lawyer to modify the state court order so that Carmody could
respond freely to the university’s allegations. The order was
not a permanent or long-term prohibition. It was a temporary
obstacle that could be modified, especially with the univer-
sity’s cooperation. Also, the timetable seems both unusual and
relevant. The university fired Carmody the same day the state
court met with counsel for Carmody and the university and
modified its order to allow him to respond to the accusations.
There is no indication here of any special urgency that required
the university to fire Carmody (remember that he had been
suspended with pay) before he could provide a meaningful
response to the accusations.
We cannot decide at this point, of course, whether
Carmody can present sufficient evidence to survive a motion
for summary judgment and to prevail at trial. Perhaps his
answering the university’s questions would not have required
him to violate the state court order. Perhaps he was not
reasonably diligent in attempting to remove the obstacle that
1
Carmody’s case is substantially different from cases involving employees
who decline to respond to an employer’s charges because their responses
could be incriminating. Such employees, rather than being silenced by a
temporary court order, make a voluntary and self-interested choice to stay
silent. Cases holding that such employees have been given a sufficient
opportunity to respond, see, e.g., Gniotek v. City of Philadelphia, 808 F.2d 241,
245 (3d Cir. 1986), do not apply here.
14 No. 13-2302
the order presented. Perhaps even a brief further delay would
have imposed an undue burden on the university. Such
questions cannot be resolved on a motion to dismiss on the
basis of the complaint and the attached exhibits. See Chaney v.
Suburban Bus Div. of Regional Transp. Auth., 52 F.3d 623, 630 (7th
Cir. 1995) (reversing grant of motion to dismiss claim of
inadequate pre-termination hearing).
Turning to Carmody’s second theory on the pre-termina-
tion process, the later-added charge for failure to report a
security breach, we also agree with Carmody at the pleadings
stage that this charge may have been sufficiently distinct from
the original charges that he did not receive fair notice before
the July 28 meeting that he faced this charge. Relying on a new
charge without providing a meaningful opportunity to
respond violates due process. See Staples v. City of Milwaukee,
142 F.3d 383, 384, 387 (7th Cir. 1998) (reversing grant of
summary judgment for employer because employee was
informed of one grievance before a pre-termination meeting
but not another and arguably had no meaningful opportunity
to respond to new charge); Peery v. Brakke, 826 F.2d 740, 743–44
(8th Cir. 1987) (reversing judgment notwithstanding the
verdict for employer because employee had notice of only
some charges against him and was not “given any opportunity
to respond to the new charges before being fired”); see also
Stone v. FDIC, 179 F.3d 1368, 1376 (Fed. Cir. 1999) (“Procedural
due process guarantees are not met if the employee has notice
only of certain charges or portions of the evidence and the
deciding official considers new and material information.”).
The university, relying on Head v. Chicago School Reform Bd.
of Trustees, 225 F.3d 794 (7th Cir. 2000), contends that Carmody
No. 13-2302 15
should have realized a charge of failure to report a security
breach was at least implicit in its July 19 letter. In Head we
affirmed the district court’s grant of summary judgment to the
employer. We concluded that the rather broadly worded
charges leveled against the employee before his pre-termina-
tion hearing constituted sufficient notice, particularly because
the employee was given an additional opportunity to respond
to the charges after the hearing but before he was fired. Id. at
799 n.3, 804. This case is different because we face a similar
issue on the pleadings rather than summary judgment. We
cannot resolve the factual issues on the pleadings, and in any
event there is no indication that Carmody received a second
pre-termination opportunity to respond to the arguably new
charge, as the plaintiff did in Head.
The university’s response regarding Carmody’s pre-
termination claim is focused primarily on pointing out,
correctly, that Carmody’s reliance on Baird v. Board of Educ. for
Warren Cmty. Unit Sch. Dist. No. 205, 389 F.3d 685 (7th Cir.
2004)—a case holding that a breach of contract suit cannot
substitute for a post-termination hearing—is misplaced.
Regarding the adequacy of Carmody’s pre-termination
hearing, the university merely states that Carmody could have
responded to the charges at the July meeting despite the court
order because “[i]t was the use of the e-mails that was being
investigated, not the information contained therein.” In
addition, the university remarks that the “district court
correctly ruled that the statement of charges provided to
Carmody was certainly sufficient to allow him to defend
himself.” These conclusory assertions merely contradict
Carmody’s factual allegations. They are not sufficient to allow
16 No. 13-2302
us to affirm dismissal on the pleadings. Carmody should have
been allowed to proceed on the theory that he was denied an
adequate pre-termination hearing.
II. Sufficiency of the Post-Termination Hearing
A. Factual Allegations
After Carmody was fired, he notified the university that he
would appeal. He received a document summarizing the
hearing procedures, and his attorney Kirchner responded with
a letter objecting to a number of perceived deficiencies. The
objections relevant to this appeal were that the procedures did
not provide for access to examine the university’s email
system, or for a court reporter or other means of recording the
hearing, or for subpoenas to witnesses. The university refused
Carmody’s requests to alter these aspects of the hearing
procedures.
The hearing officer’s report, attached as an exhibit to
Carmody’s complaint, shows that Carmody’s lawyer was
permitted to cross-examine the university’s witnesses exten-
sively. The university rested its case in mid-December 2010,
and the hearing was to resume at the end of January 2011 for
Carmody to present his evidence.
Scheduling conflicts between attorney Kirchner and counsel
for the university delayed resumption, which was rescheduled
for May 2011. On April 17, however, Kirchner died. Carmody
was left unrepresented. Carmody then asked to see the hearing
officer’s notes, which he felt would help him find a new
attorney. The hearing officer denied that request, but he
granted Carmody’s request for a few months to replace
No. 13-2302 17
Kirchner. Although the university sought a specific deadline,
the hearing officer explained that he would not “set firm time
limits on Mr. Carmody’s efforts to secure new representation.”
At the end of June 2011, Carmody sent the hearing officer
an email declining to participate in further proceedings. He
said the hearing officer should conclude the post-termination
hearing with the university’s counsel. The hearing was not
resumed, and instead the university submitted a written
summary of its position.
The hearing officer issued his findings in July 2011. He
concluded that the university had not shown that Carmody
himself breached the computer system to obtain the emails in
Group Exhibit A. (The university’s evidence showed that the
emails were all accessed from Deborah Thurston’s computer,
and no direct evidence showed that Carmody was the person
who accessed them.) But the hearing officer found that the
other two charges—Carmody used the emails for non-univer-
sity purposes without permission and failed to report a
security breach—were supported “clearly and convincingly.”
Based on his findings, the officer recommended that university
officials consider whether Carmody would have been fired on
those grounds alone, without assuming that Carmody himself
had breached the system’s privacy. The university informed
Carmody the following month that the two “clearly sup-
ported” charges were “sufficiently egregious to warrant
immediate dismissal.” Following the rejection of his post-
termination appeal, Carmody filed this federal lawsuit.
In his complaint, Carmody alleges that one or more of the
issues attorney Kirchner identified when he objected to the
18 No. 13-2302
hearing procedures constituted a denial of due process. He
focuses on his inability to record the hearing, to inspect the
university’s email system, and to subpoena witnesses. He also
points to the hearing officer’s refusal to supply him with the
officer’s notes and the officer’s refusal to exclude witnesses
from the hearing while other witnesses were testifying.
The district court explained that, under Mathews v. Eldridge,
424 U.S. 319, 334–35 (1976), Carmody’s right to his employ-
ment and the probable value of his desired procedures must be
balanced against the cost of the procedures and the university’s
interest in terminating problem employees. The court con-
cluded in short that Carmody’s ability to defend himself was
not unduly hindered by the hearing’s purported deficiencies,
meaning that he had not stated a claim based on a denial of
due process. Carmody, 2013 WL 2145878 at *10–11.
B. Analysis
The requirements of due process are “flexible” and depend
on the situation at hand, Mathews, 424 U.S. at 334, but at the
same time the rules that apply to a given type of situation “are
shaped by the risk of error inherent in the truthfinding process
as applied to the generality of cases,” id. at 344. The rules are
not shaped by “rare exceptions.” Id.On appeal Carmody again lists additional procedures he
believes should have been provided, but he develops no
argument that the potential value of these procedures in post-
termination hearings, when weighed against their cost, renders
them constitutionally required. He cites a few cases involving
post-termination hearings in which a more extensive record
was produced, e.g., Willer v. Las Vegas Valley Water Dist., No.
No. 13-2302 19
98-15686, 1999 WL 274472, at *2 (9th Cir. Apr. 19, 1999) (post-
termination hearing record was over 3700 pages long);
English v. Talladega Cnty. Board of Educ., 938 F. Supp. 775, 777
n.2 (N.D. Ala. 1996) (transcript was produced), or unspecified
discovery was conducted, e.g., Powers v. Richards, 549 F.3d 505,
509 (7th Cir. 2008) (fired employee “had the opportunity to
conduct discovery”). Carmody cites no case, however, holding
that any of his desired procedures were constitutionally
required, and we have found none. The ability to subpoena
witnesses, for example, is not always guaranteed in an admin-
istrative hearing. See Amundsen v. Chicago Park Dist., 218 F.3d
712, 717 (7th Cir. 2000).
In any event, the specific procedures Carmody requested
do not require individual analysis. Carmody’s decision to bow
out of the post-termination hearing—a decision he made
freely—forecloses his due process claim to the extent it is
premised on that hearing. See Swank v. Smart, 999 F.2d 263,
264–65 (7th Cir. 1993) (employee waived right to post-termina-
tion hearing by declining it); Farhat v. Jopke, 370 F.3d 580, 596
(6th Cir. 2004) (“[W]here the employee refuses to participate or
chooses not to participate in the post-termination proceedings,
then the employee has waived his procedural due process
claim.”).
We are not suggesting that no circumstances could ever
justify forgoing a post-termination hearing. (We allowed above
for just such a possibility regarding Carmody’s pre-termination
hearing: a court order prohibiting meaningful participation.)
But the complaint and exhibits show that the university offered
Carmody an adversarial post-termination hearing before a
neutral hearing officer. He was permitted to have legal counsel
20 No. 13-2302
and to present evidence and cross-examine witnesses.
Carmody participated through the close of the university’s case
but declined to complete the hearing. His explanation on
appeal for bowing out—that he did not want “to participate in
his own lynching”—is hyperbole that is completely out of step
with his exhibits and allegations. The district court correctly
rejected Carmody’s due process claim to the extent it was
premised on the post-termination hearing.
Carmody also appeals the district court’s denial of his
motion to amend his complaint, but he has given us no
indication what allegations he would like to add. In general, a
district court should freely give leave to amend to cure curable
defects, at least where there is no undue delay or undue
prejudice to the opposing party, but the court can reasonably
expect a party asking for an opportunity to amend to identify
how he proposes to cure the defects. E.g., Independent Trust
Corp. v. Stewart Information Services Corp., 665 F.3d 930, 943–44
(7th Cir. 2012). We see no reason to disturb the district court’s
decision on this point.
III. Illinois State Officials and Employees Ethics Act Claim
Carmody also claims that his firing violated the provision
of the Illinois State Officials and Employees Ethics Act that
prohibits retaliation against employees who report illegal
activity. See 5 Ill. Comp. Stat. 430/15-10. This claim is based on
Carmody’s belief that his firing actually had nothing to do with
the emails he found in his newspaper box. He was fired in
2010, he contends, in retaliation for a report he made three
years earlier, in May 2007, about improper activity at the
university. According to his complaint, he had learned that two
No. 13-2302 21
professors were using a popcorn machine on university
property as part of “a private consulting deal” of some sort. He
reported this so-called “popcorn activity” to Professor Deborah
Thurston (of the later Goldberg case), but she took no action,
in Carmody’s view because her husband was one of the
perpetrators. Carmody’s only reason for believing that his
report about the popcorn led to his firing seems to be that the
popcorn incident occurred and then later he was fired.
If the allegations in a complaint do not “‘state a claim to
relief that is plausible on its face,’” the claim cannot survive a
motion to dismiss. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009),
quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).
The district court concluded that Carmody did not state a
plausible claim under the Ethics Act because the three years
separating the popcorn incident and his firing made his claim
implausible. Carmody, 2013 WL 2145878, at *12–13. We agree
with that assessment, at least where Carmody has given us no
potential explanation for the long delay between his report and
the alleged retaliation. Under these circumstances, three years
is “well beyond the time that would allow a reasonable jury to
conclude that his termination was causally related” to the
report. See Lalvani v. Cook Cnty., Illinois, 269 F.3d 785, 790 (7th
Cir. 2001) (concluding that a year and a half between em-
ployee’s action and supposed retaliation made claim implausi-
ble). Again Carmody seeks leave to amend his complaint, but
nothing in his appellate filings identifies new allegations or
suggests that an amendment would make his claim plausible.
For these reasons, we REVERSE the district court’s judg-
ment dismissing Carmody’s due process claim and REMAND
the case for further proceedings limited to whether he was
22 No. 13-2302
denied a constitutionally adequate pre-termination hearing.
We AFFIRM the dismissal of Carmody’s claim under 5 Ill.
Comp. Stat. 430/15-10.