In the
United States Court of Appeals
For the Seventh Circuit
No. 08-4245
T ADEUSZ P ALKA,
Plaintiff-Appellant,
v.
R OGER S HELTON, Cook County Sheriff
Police Detective, individually, et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 1:07-cv-05432—Virginia M. Kendall, Judge.
A RGUED O CTOBER 7, 2009—D ECIDED O CTOBER 7, 2010
Before R IPPLE, K ANNE, and S YKES, Circuit Judges.
S YKES, Circuit Judge. Tadeusz Palka was employed for
28 years as a Deputy Sheriff in the Cook County
Sheriff’s Department. His son Peter was an aspiring
police officer enrolled in the Chicago Police Depart-
ment’s Police Academy. He did not complete the
program, however. He was terminated from the
Academy, ostensibly for not having mastered the Police
2 No. 08-4245
Department’s firearms manual. Palka thought his son
had been targeted for termination based on his Polish
ethnicity, and he intervened on his son’s behalf with
Matthew Tobias, the Chicago Police Department official
who was in charge of the Academy. The intervention
did not end well; Peter Palka was not reinstated. A few
weeks later, a strange phone call was received by the
elementary school Tobias’s children attended. The
caller had a Polish accent and made inquiries about
Tobias’s children. Tobias traced the call to the Cook
County Building, which confirmed his suspicion that
Tadeusz Palka was the anonymous caller.
Tobias filed a complaint against Palka with the
Internal Affairs Division of the Sheriff’s Department,
and Palka was suspended with pay during the ensuing
investigation. A hearing was eventually scheduled be-
fore the County’s Merit Systems Protection Board, but
Palka resigned his position just before the hearing. He
then filed this § 1983 action against Cook County, the
City of Chicago, the Sheriff, and numerous employees
of both the Sheriff’s Department and the Police Depart-
ment. He claimed the defendants violated his procedural
and substantive due-process rights prior to his suspen-
sion and resignation, and deprived him of his interest in
“occupational liberty.” His claims against the City and
County were brought pursuant to Monell v. Department
of Social Services, 436 U.S. 658 (1978). After Palka filed a
second and then a third amended complaint, the
district court granted the defendants’ motion to dismiss
Palka’s claims with prejudice. We affirm.
No. 08-4245 3
I. Background
Tadeusz Palka was a Cook County Deputy Sheriff, and
his son Peter was in training to become a police officer
at the Chicago Police Academy. In February 2007 Peter
was terminated from the Academy. Palka believed his
son was singled out for termination because he is
Polish, and he contacted Assistant Deputy Super-
intendent Matthew Tobias, the head of the Police Acad-
emy, to complain. Palka tried to convince Tobias to rein-
state Peter, but Tobias refused, telling Palka that Peter
was terminated based on his lack of knowledge re-
garding the Police Department’s firearms manual.
On May 9, 2007, an unidentified caller phoned the
school in Park Ridge, Illinois, that Tobias’s children
attended and made inquiries about the children. When
the school receptionist asked the caller to identify him-
self, the caller stated he was a “friend” and wanted
to send the children flowers for their birthdays. The re-
ceptionist reported the call to Tobias and told him
the caller was a man with a Polish-sounding Eastern
European accent. Based on this information and the
recent dispute over Peter Palka’s termination from the
Police Academy, Tobias suspected that Tadeusz Palka
was the caller. Tobias launched an investigation, asking
Nicholas Roti, who was then the commander of the
Police Department’s Gang Crimes Unit, to look into the
call. Roti instructed two subordinates to retrieve the
school’s phone records and trace the call using “whatever
method would get the info the quickest.” The phone
records revealed that on the afternoon of May 9, the
4 No. 08-4245
school received a call from a telephone number at the
Cook County Building at 69 West Washington Street in
downtown Chicago. This confirmed Tobias’s suspicion
that Palka was the caller, so he reported the call to the
Park Ridge Police Department. He also opened a Police
Department Original Case Incident report and filed a
“Selective Enforcement—Non-Traffic” report with the
Department; this allowed him to run Palka’s license
plate and driver’s license through the “Leads System”
to check if Palka had any outstanding warrants.
Tobias also asked Deputy Superintendent Constantine
Andrews and Commander Joseph Salemme of the
Chicago Police Department to speak with Palka. At
around 10 p.m. on May 10, 2007, Andrews and Salemme
went to Palka’s residence in suburban Norridge, Illinois.
Palka was not home when they arrived; the complaint
alleges that the officers woke up an elderly neighbor to
ascertain Palka’s whereabouts. When Palka arrived
home at about 10:30 p.m., the officers accused him of
making the phone call to Tobias’s children’s school the
day before. Palka denied making the call. The officers
continued to insist that he was the caller, but they also
told him that the call was not a “big deal” and he
should not “do it anymore.”
On the morning of May 11, 2007, Tobias filed a com-
plaint with the Sheriff’s Department’s Office of Internal
Affairs accusing Palka of making the telephone call. In
the complaint Tobias said that he, his wife, and the
school staff considered the phone call to be threatening;
they were concerned that Palka was attempting to stalk
No. 08-4245 5
and possibly harm his children, and the school staff
feared for the safety of the entire student body. The
complaint also stated that Palka had attempted to ad-
versely affect Tobias’s employment status with the
Chicago Police Department as revenge for Peter’s ter-
mination from the Police Academy. Later that same day,
in response to Tobias’s complaint, Palka’s supervisor
and the head of Internal Affairs summoned Palka to
a meeting, confiscated his badge and firearm credentials,
de-deputized him, and placed him on paid suspension.
Palka alleges that he was told he was being de-deputized
because of a phone call from a “big wheel” at the Police
Department.
About two months later, in July 2007, Sheriff’s Detective
Roger Shelton and another detective met with Palka and
his attorney. The detectives told Palka they would refer
the telephone call incident to the Cook County State’s
Attorney for possible criminal prosecution unless Palka
voluntarily resigned as a Sheriff’s Deputy. Palka refused
to resign. Although the detectives did discuss the
matter with the State’s Attorney’s Office, no charges
were filed.
The disciplinary proceedings moved forward, however,
and charges were eventually filed against Palka with
the Merit Board, recommending that his employment
be terminated. A hearing was scheduled for March 2008,
but before it was held, Chief Edward Carik of the
Sheriff’s Department told Palka that if he retired, the
Merit Board action would “go away” and he would
receive full retirement benefits, including his retirement
6 No. 08-4245
badge and firearms credentials, which would permit
him to obtain another job in law enforcement. Palka
accepted this advice and resigned, but he has not
received his retirement badge and credentials.
Palka then filed this suit alleging he was deprived of
his due-process rights in violation of 42 U.S.C. § 1983. The
district court dismissed Palka’s first two complaints
without prejudice; Palka’s third amended complaint is
the subject of this appeal. In that complaint Palka named
as defendants Cook County, the Sheriff, the City of Chi-
cago, and numerous officials in the Police and Sheriff’s
Departments. The district court “charitably” construed
the complaint to allege procedural and substantive due-
process claims, a claim for deprivation of occupational
liberty, and Monell claims against the City and County.
The defendants moved to dismiss for failure to state
a claim under Rule 12(b)(6) of the Federal Rules of Civil
Procedure. The district court granted this motion and
dismissed Palka’s claims with prejudice, and Palka ap-
pealed.
II. Discussion
We review the district court’s order dismissing the
complaint de novo and will affirm if the allegations fail
“ ‘to state a claim for relief that is plausible on its face.’ ”
Justice v. Town of Cicero, 577 F.3d 768, 771 (7th Cir. 2009)
(quoting Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009)).
In reviewing the sufficiency of the complaint, we accept
the facts pleaded in the complaint as true and draw all
reasonable inferences in favor of the plaintiff. Id.
No. 08-4245 7
A. Procedural and Substantive Due-Process Claims
Palka’s complaint alleges two separate procedural due-
process violations: First, he claims he was deprived of
due process prior to his suspension; and second,
he claims he was deprived of due process prior to his
resignation, which he contends was coerced. To plead
a procedural due-process claim, Palka must allege a
cognizable property interest, a deprivation of that in-
terest, and a denial of due process. Hudson v. City of Chi-
cago, 374 F.3d 554, 559 (7th Cir. 2004). As a threshold
matter, the procedural due-process claims against the
City and its employees necessarily fail. Because the
County, not the City, was Palka’s employer, Palka
cannot sue the City and its employees for depriving
him of due process in connection with the loss of his
employment.
Nor has Palka stated a cognizable claim against Cook
County or any of its employees. A property interest in
continued employment “can be created in one of two
ways, 1) by an independent source such as state law
securing certain benefits; or 2) by a clearly implied
promise of continued employment.” Phelan v. City of
Chicago, 347 F.3d 679, 681 (7th Cir. 2003) (internal
quotation marks omitted). Due-process claims in the
context of public employment require an entitlement to
continued employment; more specifically, the plaintiff
must have “a legitimate claim of entitlement not to lose
a valuable governmental benefit except for cause.” Lee v.
County of Cook, 862 F.2d 139, 141 (7th Cir. 1988) (quotation
marks omitted). A collective-bargaining agreement can
8 No. 08-4245
create an employment contract—and thus a promise of
continued employment—in some cases. Krieg v. Seybold,
481 F.3d 512, 519-20 (7th Cir. 2007); see also Young v. N.
Drury Lane Prods., 80 F.3d 203, 206 (7th Cir. 1996) (noting
that a labor agreement is not an employment contract).
When a plaintiff alleges that the due-process entitlement
arises from a collective-bargaining agreement, he must
identify specific terms of the agreement that contained
a promise of continued employment. Krieg, 481 F.3d at
520; see also Minch v. City of Chicago, 486 F.3d 294, 302
(7th Cir. 2007).
Palka did plead that he was a member of a collective-
bargaining unit but did not identify a provision in the
collective-bargaining agreement that could feasibly give
rise to a constitutionally protected property interest in
continued employment. See Krieg, 481 F.3d at 520. The
part of his complaint that comes closest is the allegation
that he was scheduled to appear before the Merit Board
on disciplinary charges; only tenured employees would
be entitled to a hearing before this board. We will
assume without deciding that this allegation is suf-
ficient and move on to consider whether Palka’s allega-
tions state a cognizable claim for violation of his right
to procedural due process.
As we have noted, Palka has alleged he was deprived
of due process prior to both his suspension and resigna-
tion. Regarding the former, Palka was suspended with
pay, and a suspension with pay does not trigger due-
process protections unless the suspension imposes a
substantial indirect economic effect on the plaintiff. Town-
No. 08-4245 9
send v. Vallas, 256 F.3d 661, 676 (7th Cir. 2001) (teacher’s
loss of coaching income after suspension with pay not
sufficient to implicate due-process protections). Palka
has not claimed that he suffered any indirect economic
consequences as a result of his suspension with pay.
Accordingly, to the extent that he claims he was
deprived of due process prior to his suspension, he
has not stated a valid constitutional claim.
Palka also alleged that he was deprived of due process
prior to his resignation; this claim rests on his conten-
tion that his resignation was involuntary. A public em-
ployee who voluntarily resigns cannot complain about
a lack of due process, but an “involuntary” resignation
may in certain circumstances form the basis of a due-
process claim. Dusanek v. Hannon, 677 F.2d 538, 543 (7th
Cir. 1982). Two types of involuntary resignation may
qualify—constructive discharge and coerced resignation.
Patterson v. Portch, 853 F.2d 1399, 1405-06 (7th Cir. 1988).
Constructive discharge occurs when an employer makes
employment so unbearable that an employee resigns;
coerced resignation is characterized by the presence of a
Hobson’s choice in which the employee must resign or
suffer severe consequences, such as facing criminal
charges. See id. Palka’s claim falls in the latter category;
he alleges that the defendants forced him to choose be-
tween resigning to protect his retirement benefits or
clearing himself before the Merit Board.
No doubt Palka was confronted with a difficult choice
when the disciplinary charges were lodged against him
and the Merit Board hearing loomed. He could retire
10 No. 08-4245
with full benefits or appear before the Board and poten-
tially be vindicated; the latter option, however,
obviously risked termination and loss of his benefits if
the charges were substantiated. But this is not the kind
of choice that makes an otherwise voluntary resignation
involuntary. The Merit Board provides adequate pro-
cedural protections to Cook County employees facing
disciplinary charges, and its formal procedures were
underway when Palka chose to resign. The Merit Board’s
disciplinary process satisfies the County’s procedural due-
process obligations, and the County and its officials
cannot be held liable when an employee chooses not
to avail himself of its protections. See Dusanek, 677 F.2d at
543 (“[A] state cannot be held to have violated due
process requirements when it has made procedural
protection[s] available and the plaintiff has simply
refused to avail himself of them.”). That Palka decided
to resign rather than risk an unfavorable Merit Board
decision does not make his resignation involuntary. The
district court was right to dismiss his procedural due-
process claim.
The court also properly dismissed Palka’s substan-
tive due-process claim. This sort of claim is limited to
violations of fundamental rights, see Belcher v. Norton,
497 F.3d 742, 753 (7th Cir. 2007), and employment-
related rights are not fundamental; an alleged wrongful
termination of public employment is not actionable as
a violation of substantive due process unless the em-
ployee also alleges the defendants violated some other
constitutional right or that state remedies were inade-
quate, Montgomery v. Stefaniak, 410 F.3d 933, 939 (7th
No. 08-4245 11
Cir. 2005). Palka has not pleaded an additional constitu-
tional violation or claimed that state-law remedies
were inadequate. He therefore has failed to state an
actionable substantive due-process claim.
Palka’s substantive due-process claim also fails to the
extent that he bases it on the conduct of the Police De-
partment officials. The Due Process Clause protects
citizens from abuses of power by executive officials—
including law-enforcement officers—but official miscon-
duct will rise to the level of a constitutional viola-
tion only if it shocks the conscience. Russ v. Watts,
414 F.3d 783, 789 (7th Cir. 2005); see also County of Sacra-
mento v. Lewis, 523 U.S. 833, 846-47 (1998). Palka con-
tends that the police officers’ investigation—tracing the
phone call to the school, their use of the “Leads System,”
and the fact that they traveled outside their jurisdiction
to track him down at his house at night—subverted
internal Police Department rules and therefore qualifies
as conscience-shocking official misconduct. It does not.
The threshold for this kind of due-process claim is high;
many forms of governmental misconduct are excluded.
Tun v. Whitticker, 398 F.3d 899, 903 (7th Cir. 2005) (“It is
one thing to say that officials acted badly, even
tortiously, but—and this is the essential point—it is
quite another to say that their actions rise to the level
of a constitutional violation.”); Kernats v. O’Sullivan, 35
F.3d 1171, 1175 (7th Cir. 1994) (“Of course, every official
abuse of power, even if unreasonable, unjustified, or
outrageous, does not rise to the level of a federal con-
stitutional deprivation.”). Accepting (as we must) Palka’s
allegations as true, he has failed to state a cognizable
substantive due-process claim.
12 No. 08-4245
B. Occupational-Liberty Claim
Palka has also alleged a violation of his interest in
occupational liberty. This claim appears to rest on Tobias’s
complaint to the Sheriff’s Department and the County’s
failure to give him a retirement badge and firearms
credentials following his resignation. An occupational-
liberty claim may arise when, after an adverse employ-
ment action, a public employer stigmatizes the employee
by making public comments impugning his good name,
honor, or reputation or imposes a stigma that forecloses
other employment opportunities. Bd. of Regents v. Roth,
408 U.S. 564, 573-74 (1972). Under this doctrine, a plain-
tiff must plead that (1) the defendant made stigmatizing
comments about him; (2) those comments were publicly
disclosed; and (3) he suffered a tangible loss of other
employment opportunities as a result of the public dis-
closure. Townsend, 256 F.3d at 669-70. The public-disclosure
element requires that the defendant actually disseminate
the stigmatizing comments in a way that would reach
potential future employers or the community at large.
Ratliff v. City of Milwaukee, 795 F.2d 612, 627 (7th Cir.
1986) (no public disclosure and therefore no constitu-
tional violation where communications regarding rea-
sons for discharge were disseminated internally); see also
Johnson v. Martin, 943 F.2d 15, 16-17 (7th Cir. 1991) (same).
Palka alleged that the complaint Tobias filed with the
Sheriff’s Department falsely asserted that he engaged in
criminal conduct and that his failure to receive a retire-
ment badge and firearms credentials upon his resigna-
tion exacerbated the impression left by the false allega-
No. 08-4245 13
tions. But Tobias’s complaint was not publicly disclosed;
Tobias’s stigmatizing allegations were made only to the
Sheriff’s Department, Palka’s employer, and not a
potential future employer. That the allegations were
relayed to the State’s Attorney’s Office does not make a
difference. The State’s Attorney’s Office has an obliga-
tion of confidentiality, and there is no allegation that
Tobias’s complaint reached potential future employers.
An occupational-liberty claim requires “that the circum-
stances made it virtually impossible for [the plaintiff ] to
find a new position in his chosen profession.” Lashbrook
v. Oerkfitz, 65 F.3d 1339, 1349 (7th Cir. 1995) (citing
Ratliff, 795 F.2d at 625). The district court properly dis-
missed this claim.
C. Monell Claim
Finally, Palka has asserted claims against the City and
County under Monell v. Department of Social Services, 436
U.S. 658 (1978). But because his complaint fails to state
a claim for any constitutional violation, the City and
County cannot be held liable; a Monell claim requires a
municipal policy or practice that results in a constitu-
tional deprivation. Christensen v. County of Boone, 483 F.3d
454, 465 (7th Cir. 2007) (“Because we have determined
that all of plaintiffs’ claims under federal law were prop-
erly dismissed, there can be no § 1983 liability for
Boone County either.”).
A FFIRMED.
10-7-10