Opinion
IP 02-0367-C-K/T
December 18, 2002.
ENTRY ON MOTIONS FOR SUMMARY JUDGMENT
This Entry is a matter of public record and is being made available to the public on the court's web site, but it is not intended for commercial publication either electronically or in paper form. Although the ruling or rulings in this Entry will govern the case presently before this court, this court does not consider the discussion in this Entry to be sufficiently novel or instructive to justify commercial publication or the subsequent citation of it in other proceedings.
The Plaintiff, Joseph G. Wehner, and the Defendant, Ball State University ("BSU"), both move for summary judgment on federal and state law claims arising out of an employment dispute between Mr. Wehner and BSU, his former employer.
The Plaintiff originally filed his complaint in Delaware County Court for the State of Indiana. The complaint alleged a due process violation based on the Fourteenth Amendment to the U.S. Constitution and Article I, section 12 of the Indiana State Constitution (the "due course of law clause"), and a claim for breach of contract. The Defendant removed to federal court on the basis of the federal due process claim. The Plaintiff then amended its complaint to add a request for Declaratory Judgment, and the Defendant counter-claimed asking for attorney's fees, court costs, and other reasonable litigation expenses under Indiana Code section 5-14-1.5-7(f)(2).
The Plaintiff originally included a violation of the Indiana "Open Meetings" law count, which was abandoned in the Second Amended Complaint.
Having reviewed all the arguments and submissions of the parties, the court now rules on the motions for summary judgment solely with respect to the federal due process claim, as explained below.
Absent from the Plaintiff's pleadings is any mention of the cause of action which allows the Plaintiff to bring his due process claim. The court will thus assume that the Plaintiff intends to proceed under 42 U.S.C. § 1983, the usual vehicle for such suits. See Poultry Farms, Inc. v. Rose Acre Farms, Inc., 881 F.2d 1396, 1399 (7th Cir. 1992) ("[u]nder a system of notice pleading, a party may prevail by establishing that its legal rights have been violated, whether or not it names the right statute.") That statute requires that a plaintiff establish (1) "the conduct complained of was committed by a person acting under color of state law"; and (2) this "conduct deprived a person of the rights, privileges, or immunities secured by the Constitution or laws of the United States." Townsend v. Vallas, 256 F.3d 664, 669 (7th Cir. 2001). Accordingly, the Plaintiff in this case alleges that the Defendant, acting under color of state law, deprived him of a protected property interest without due process, in violation of the Fourteenth Amendment.
I. Background Facts
The facts set forth in this entry are exclusively for purposes of adjudication of the present claim and have no preclusive or binding effect in any subsequent proceeding. All facts are agreed to by the parties unless otherwise noted.
On or about June 4, 2001, the Plaintiff received a letter of appointment from BSU renewing his contract for the fiscal year beginning July 1, 2001. (JSUF at 5.) Both parties agree this letter constitutes his employment contract. The appointment letter gave the Plaintiff's title for the contract year as "Director of Public Safety" at a salary of $80, 881. It also made his appointment subject to the rules and regulations contained in the Faculty and Professional Personnel Handbook (the "Handbook") and "other approved university documents and the policies and regulations adopted by the President and Board of Trustees." (Pl.'s Ex. 5.)
However, because of the concerns of Mr. Wehner's supervisors regarding his stewardship of the BSU police department, he did not serve out his year-long term at the position of Director. Beginning in 2001, a number of incidents involving the BSU police had occurred, in some cases attracting great publicity. The details of these events are not material to the remaining issue in this case, and the court will not repeat them here. The end result was that, sometime in January 2002, Mr. Wehner's direct supervisor, Dr. Randy Hyman, Associate Vice President for Student Services and Dean of Students, and Dr. Hyman's supervisor, Dr. Douglas McConkey, Vice President for Student Affairs and Enrollment Management, attest that they had lost confidence in the Plaintiff and had come to believe that a leadership change in the Department of Public Safety was necessary. (McConkey Aff. ¶ 18; Hyman Aff. ¶ 14).
Interested parties are directed to the Defendant's Statement of Material Facts in its Cross-Motion for Summary Judgment at 3-5.
On January 30, 2002, Drs. McConkey and Hyman met with Mr. Wehner and told him that he could either resign, be reassigned, or reach an agreement with BSU to buy out his contract. (JSUF at 14.) On February 5, 2002, the Plaintiff replied saying he refused three options, and wished instead to remain as Director of Public Safety. (JSUF at 15.) The next day Dr. McConkey informed Mr. Wehner he had been removed from the position of Director of Public Safety. Initially placed on temporary administrative leave, on February 13, 2002, the Plaintiff was reassigned to a position in the Department of Facilities, Planning and Management. BSU does not assert that Mr. Wehner's removal was for cause. (JSUF at 24.)
The parties vigorously dispute whether the act of dismissing Mr. Wehner from his position as Director of Public Safety before the end of the 2002-2003 contract term and transferring him to another job within BSU with the same salary and benefits was a breach of his employment contract. As will be discussed in part IV of the opinion, that issue is remanded to state court for consideration.
Mr. Wehner was classified by the BSU Handbook as a continuing contract professional. (JSUF at 12.) Since he had been at that position for more than four years and since he was not being terminated for cause, the Plaintiff was entitled under Handbook regulations to twelve month notice prior to the termination of his employment. (Pl.'s Ex. 4 at 43.) Accordingly, on February 7, 2002, Dr. McConkey wrote Mr. Wehner notifying him that BSU was terminating his employment effective February 8, 2003. (JSUF at 18.)
In his new position at BSU, Mr. Wehner continues to receive his full salary as stated in his appointment letter, as well as all employee benefits. (JSUF at 21.) Nonetheless, he does not enjoy all the perquisites associated with his former position. As Director of Public Safety, the Plaintiff was provided with a cellular telephone and university vehicle, both of which he was obliged to return upon his dismissal. Mr. Wehner states that he was allowed to use both the car and the cell phone for personal use in addition to university business. (Wehner Aff. ¶ 15.) The Defendant claims both were primarily for business purposes. (Hyman Aff. ¶ 18-19.) It is undisputed that the Plaintiff signed an agreement concerning his use of the university vehicle which provided for its return to BSU upon a change in assignment of the employee. The agreement also stipulated that "the vehicle is to be used primarily for university business by the employee" and that "[p]ersonal use of the vehicle is limited to the employee only." (Ex. 2-B.) The Defendant's contention that the main purpose of the vehicle was for university business is, therefore, correct, however, Mr. Wehner also had authorization to make limited personal use of it. Construing the record in the light most favorable to the Plaintiff, although it is denied by the Defendant, the court likewise accepts the Plaintiff's claim that he was allowed to make personal use of the cell phone. (Wehner Aff. ¶ 15.) Both parties agree that in his current position, the Plaintiff enjoys personal use of neither car or cellphone.
In his Reply Brief, the Plaintiff contends that his health insurance premiums have been raised and that he has been denied an across-the-board salary increase of 2.8% for the 2002-2003 fiscal year (subsequent to his agreement to JSUF 21). Thus, according to the Plaintiff, it is no longer true that he "has continued to receive his salary as stated in his appointment letter and benefits such as insurance, pension, etc." (Def.'s Repy Br. at 7; Wehner Supp. Aff. ¶¶ 4-6.) In regards to the salary increase, the Plaintiff has not rebutted Dr. McConkey's testimony, supported by a copy of the BSU Board of Trustees Report dated May 3, 2002, that the 2.8% across the board salary increase to which Mr. Wehner refers does not apply to his category of personnel (continuing contract professional), and that any salary increase with respect to professional staff are committed to the discretion of Dr, McConkey, based upon considerations of merit, market, or salary inequity. Mr. Wehner did not receive a salary increase for 2002-2003 because, according to Dr. McConkey, he did not merit one. (McConkey Supp. Aff. ¶¶ 6-8; Exs. A-B to Supp. Aff.) Similarly in regards to the increase in premiums, the Plaintiff has failed to contest Dr. McConkey's assertion that the increase was the same for all BSU employees who elected Mr. Wehner's same level of coverage. (McConkey Supp. Aff. ¶ 9; Ex C to Supp. Aff.) The Plaintiff does not argue that he was entitled to a freeze in premium levels under his contract.
In light of these considerations, the court finds that Mr. Wehner continues to receive his full salary and benefits in his new position, and JSUF 21 stands undisputed.
The job description of the Plaintiff's current position in the Department of Facilities, Planning and Management states the job involves "planning and development of protocols for building security, power outage and power plant crisis security, parking, medical emergencies, and electronic locking." (JSUF at 20.) The Associate Vice President for Facilities Planning and Management, Mr. Kevin S. Kenyon, has assigned him a number of projects including "developing documentation for security procedures for buildings, developing response procedures and protocols for medical emergencies, a crisis management and prevention plan for the University power plant and power outages." (Kenyon Aff. ¶ 7.) In spite of this list, Mr. Wehner maintains that on a number of occasions he lacked for assignments, and, at least once, his supervisor was unable to provide him with any additional work. (Wehner Supp. Aff. ¶ 12-13.)
Mr. Wehner also claims that he has sought employment at other colleges and universities for positions similar to that of Director of Public Safety, but his efforts have met with no success as of the present time. (Wehner Supp. Aff. ¶ 15.)
II. Summary Judgment Standard
The court must grant summary judgment if there is "no genuine issue as to any material fact." Fed.R.Civ.P. 56(c). The standard for summary judgment is the same as that of a directed verdict, that is, summary judgment is warranted where no rational jury or other trier of fact could render a verdict for the nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Colosi v. Electri-Flex Co., 965 F.2d 500, 504 (7th Cir. 1992). A "metaphysical doubt" regarding the existence of a material fact will not defeat a motion for summary judgment, Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 474 U.S. 574, 587 (1986). Moreover, the moving party need not positively disprove the nonmovant's case, but may prevail by "pointing out to the district court" a lack of supporting evidence. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).
Where, as here, the parties have both filed motions for summary judgment, the court's review of the record "requires that [it] construe all inferences in favor of the party against whom the motion under consideration is made." Metropolitan Life Ins. Co. v. Johnson, 297 F.3d 558, 561-562 (7th Cir. 2002) (citation omitted). The court will begin with consideration of BSU's motion, and, therefore, will draw all reasonable inferences in favor of the Plaintiff.
III. Discussion
The Plaintiff argues that BSU's actions in removing him from his position as Director of Public Safety deprived him of a property interest without due process of law and violated his substantive due process rights under the Fourteenth Amendment. The later claim, unsupported by either authority or argument, is without merit. Substantive due process violations are reserved for those state abuses of power which "shock the conscience," see Rochin v. California, 342 U.S. 165 (1952); County of Sacramento v. Lewis, 523 U.S. 833 (1998), and there is no indication of any conduct on the part of BSU which would rise to that level. The court proceeds directly to the Plaintiff's procedural due process claim.
As the Supreme Court has made clear, property interests whose deprivation requires the provision of due process protections are not created by the U.S. Constitution. Ulichny v. Merton Cmty. Sch. Dist., 249 F.3d 686, 699 (7th Cir. 2001) (citing Bd. of Regents v. Roth, 408 U.S. 564, 576-78 (1972)). Rather, a property interest arises where an independent source, either state or federal law, directly or indirectly confers an entitlement upon a public employee. See Id. at 700; Head v. Chicago Sch. Reform Bd. of Trs., 225 F.3d 794, 802 (7th Cir. 2000). "Accordingly, federal property interests under the 14th Amendment usually arise from rights created by state statutes, state or municipal regulations or ordinances, and contracts with public entities." Ulichny, 249 F.3d at 700. Once such an interest is established, it may not be deprived without due process of law. Swick v. City of Chicago, 11 F.3d 85, 86 (7th Cir. 1993) (citing Bishop v. Wood, 426 U.S. 341, 344-45 (1976)).
The Plaintiff asserts that he had a protected property right, based upon his employment contract, in remaining at the position of Director until the conclusion of the 2002-2003 year. The Defendant, for its part, denies that Mr. Wehner's removal and transfer prior to the end of his contract term violated his contract. For the purposes of evaluating his due process claim, however, the court will assume that the Plaintiff's dismissal from the position of Director breached his contract. Thus, the court will accept as a starting point the Plaintiff's contention that his contract with BSU created a property interest in the position of Director for the balance of the contract term. See, e.g., Crim v. Bd. of Educ. of Cairo Sch. Dist. No 1, 147 F.3d 535, 546 (7th Cir. 1998) (school superintendent dismissed before end of contract term with full salary and benefits had protected property right to position of superintendent for duration of contract); Head, 225 F.3d at 803 (school principal "had a property interest in completing his contract in accordance with the terms of the contract, one of which specifically made him principal of Pope Elementary."); Bordelon v. Chicago Sch. Reform Bd. of Trs., 223 F.3d 524, 530 (7th Cir. 2000) (principal transferred to administrative position with full pay and benefits retained property interest in completing his contract in accordance with its terms).
Because of this assumption, Ulichny v. Merton Community School District, 249 F.3d 686, (7th Cir. 2001), on which the Defendant relies, is distinguishable. There, the plaintiff, a school principal, retained her position with full pay yet had been deprived of certain duties she argued were "normally expected of the principal's position." Id. at 701. The court held that, because she merely had a unilateral expectation of performance of these duties, and not "a legitimate claim of entitlement [thereto] . . . either in case law, the job description, the contract or Wisconsin statutes," the plaintiff did not enjoy a protected property interest, id. at 701 (citing Roth, 408 U.S. at 577.) In this case, the court is proceeding on the assumption the Plaintiff held a protected property interest in his position by virtue of his employment contract. The question here is, instead, whether the Defendant inflicted an actionable deprivation of that interest without due process.
But the analysis does not end there. Under well-established Seventh Circuit case law, Mr. Wehner must also create an issue of material fact as to whether he suffered an actionable deprivation of his property interest. In other words, as the Defendant argues, in being stripped of the position of Director yet retaining his full pay and benefits, the Plaintiff may have been subject to a de minimus deprivation that does not entitle him to relief. Specifically, the court in Swick v. City of Chicago, 11 F.3d 85, 87 (7th Cir. 1993) held that only harms involving measurable economic value count as cognizable deprivations of property. As the Swick court stresses, that does not mean that the law provides relief solely for a loss of money income; rather, any harm of readily calculable pecuniary value is compensable. Id. at 87. Conversely, "[w]e do not think that `property' within the sense of the [Fourtheenth] [A]mendment should be extended to the purely dignitary or otherwise nonpecuniary dimensions of employment." Id. (citations omitted). Thus, in that case the court declined to find that a police officer had suffered an actionable deprivation of property where he had been suspended with full pay and benefits and where there was no other evidence of direct or indirect pecuniary loss. See also Cleveland v. Bd. of Educ. Loudermill, 470 U.S. 532, 545 (1985) (suggesting in dicta that an employer could avoid due process concerns by keeping the employee on the job with pay).
Likewise in a set of cases involving public school officials removed from their positions in breach of their contracts, yet with full pay and benefits, courts have refused to recognize a due process violation. See Bordelon, 233 F.3d at 539 (principal transferred to administrative position without loss of pay or benefits not entitled to recover because no evidence of economic harm or impact on future income) (citing Swick, 11 F.3d at 87); Crim, 147 F.3d at 546-47 (plaintiff superintendant, relieved of his position yet in retention of his full salary and benefits, failed to make adequate showing he lost a right with measurable economic value).
Here, too, Mr. Wehner's argument for a due process violation is unavailing because he has not created an issue of fact with respect to any economic loss he might have suffered as a result of BSU's actions. It is undisputed that he retained the same salary and benefits package in his new job. (See supra at note 6.) He offers proof of economic harm in the form of loss of personal use of a university car and cellular telephone. As to the former, the university vehicle agreement signed by Mr. Wehner provided a means of converting miles driven for personal use into income for income tax purposes. (Ex. 2-B at 2.) This calculation would, of course, give some indication of the pecuniary value of the personal use of the vehicle. Notwithstanding his assertion, however, the Plaintiff has failed to avail himself of this or any other formula that would monetize the benefit from personal use of the car and thus show compensable loss under Swick. The same for the cell phone. In neither case does the Plaintiff offer any evidence, in the form of a tax return or otherwise, of the value of the personal use of these items. Bare allegations of a personal benefit do not remove loss of that benefit from the difficult to calculate, de minimus category of deprivation identified in Swick.
The Plaintiff also points to his clothing allowance, but does not contest Dr. Hyman's statement that it was for the purchase of uniforms and other police equipment. (Hyman aff. ¶ 20.) As such, the allowance can hardly be considered a form of compensation to which the Plaintiff has a legal right.
The Plaintiff also claims that his removal prior to the completion of his contract term has adversely affected his ability to obtain equivalent jobs at other institutions. It is true that a properly supported allegation of an employer's action that impedes future job opportunities, adversely affecting future income, constitutes economic harm for due process purposes. See Swick, 11 F.3d at 86 ("We can imagine a case in which a period of forced inactivity impeded promotional opportunities or had other indirect effects on post-retirement income"); Head, 225 F.3d at 803 ("We have recognized that a loss of position that impedes future job opportunities or has other indirect effects on future income can inflict an actionable deprivation of property.") (citing Swick, 11 F.3d at 86) (dicta); Bordelon, 233 F.3d at 531 (noting that a plaintiff may establish an actionable deprivation of property by a showing of adverse impact on future job opportunities.) As in Bordelon, however, the Plaintiff in this case has failed to raise a triable issue of fact with respect to the claimed negative impact on his future job prospects. His sole evidence of such impact is his affidavit testimony that he has sought employment at other colleges and universities for equivalent positions without success. (Wehner Supp. Aff. ¶¶ 16-18.) The Plaintiff has submitted no documentation as to the number of job inquiries he made, the equivalence of the positions for which he applied, or the prospective employer's reasons for its refusal to hire him-anything that would substantiate his claim. The undeveloped state of the record on this issue does not permit a justifiable inference of concrete adverse impact on future income.
The Plaintiff has consistently argued the impact on his future employment opportunities as a deprivation of a property interest, and appropriately so, for there is no indication in the record he could meet the elevated standard required to establish deprivation of a liberty interest. See Bordelon, 233 F.3d at 531 ("It is not enough that the employer's stigmatizing conduct has some adverse effect on the employee's job prospects; instead, the employee must show that the stigmatizing actions make it virtually impossible for the employee to find new employment in his chosen field.") (internal quotes and citation omitted).
In sum, while the Plaintiff may have suffered some dignitary injury due to his dismissal, he has not come forward with evidence of the kind of tangible pecuniary loss that is required to sustain a claim of deprivation of a protected property interest. The court's conclusion that he has not obviates the need to consider the type of process provided him either before or after his removal as Director of Public Safety.
IV. Remand of State Claims
Upon due consideration this court has decided to remand the Plaintiff's and the Defendant's remaining state law claims back to state court. These claims either involve or depend on the resolution of difficult questions of contract interpretation under Indiana law, which this court believes are best addressed by the state courts. See 18 U.S.C. § 1367 (giving the district court authority to decline to exercise supplemental jurisdiction over a claim which "raises a novel or complex issue of State law" or "substantially predominates over the claim or claims over which the district court has original jurisdiction.") Thus, the Plaintiff's due course of law claim, breach of contract claim, and prayer for declaratory judgment are remanded to Indiana court, as is the Defendant's counter-claim for attorney's fees under an Indiana statute.
V. Conclusion
In conclusion, the Defendant's motion for summary judgment is GRANTED with respect to the Plaintiff's federal due process claim. The Plaintiff's arguments in support of his own motion for summary judgment on this issue are merely the converse of the reasons he unsuccessfully contends that the Defendant should not prevail on its motion. Plaintiff's motion is therefore DENIED, and the remaining state claims are REMANDED.
ALL OF WHICH IS ORDERED this 18th day of January 2003.