In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-1922
PREM LALVANI,
Plaintiff-Appellant,
v.
COOK COUNTY and ROBERT COLEMAN,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 98 C 2847—Ronald A. Guzmán, Judge.
____________
ARGUED APRIL 7, 2004—DECIDED FEBRUARY 3, 2005
____________
Before FLAUM, Chief Judge, and WOOD and WILLIAMS,
Circuit Judges.
WOOD, Circuit Judge. Prem Lalvani, a 30-year veteran of
the Cook County Hospital (CCH) Social Work Department,
was terminated in 1996 when Cook County implemented a
county-wide reduction in force (RIF). After several unsuc-
cessful attempts to clarify his rights with respect to the
layoff, Lalvani filed suit, alleging among other things a
violation of his due process rights. The district court
dismissed all of Lalvani’s claims on summary judgment. We
reversed with respect to the due process claim. See Lalvani
v. Cook County, 269 F.3d 785 (7th Cir. 2001) (Lalvani I). On
remand, a jury found that Lalvani had merit employee
2 No. 03-1922
status, such that he had a property interest in his job, but
it also found, in response to a question posed to it, that he
had not been terminated “for cause.” Based on these
findings, the district court concluded that Lalvani had
received all the process that he was due. The case is again
before us, as Lalvani contends that the jury received
erroneous instructions and that the district court erred in
holding that he suffered no due process violation. We
conclude that the instructions misstated the law, insofar as
they directed the jury to answer the question whether
Lalvani was terminated “for cause.” Based on the verdict we
have, we conclude that Lalvani’s due process rights were
violated. We therefore remand for a trial limited to the
question of damages.
I
We will assume familiarity with our earlier opinion
and will repeat only those facts necessary to the disposition
of this successive appeal. Lalvani began working as a social
worker at CCH in 1966, when the hospital was under the
authority of Cook County. In 1969, control of the hospital
was transferred to the Health and Hospitals Governing
Commission (the Governing Commission). Four years later,
CCH promoted Lalvani to the position of Medical Social
Worker IV. Effective November 30, 1979, the Governing
Commission was abolished, at which time control over CCH
was returned to Cook County, where it has remained since
then. Under 55 ILCS 5/5-37003, the Cook County Board of
Commissioners was to “have and exercise all rights, powers
and duties heretofore exercised by [the Governing Commis-
sion]. . . . All rights, duties and obligations of the Commis-
sion shall become the rights, duties and obligations of the
Board of Commissioners.”
In 1989, Lalvani, who is of Asian-Indian descent, unsuc-
cessfully sought a promotion to a vacant Medical Social
No. 03-1922 3
Worker V position. When CCH did not award him the job,
he filed a grievance with CCH and the Illinois Human
Rights Commission alleging that the selection committee
had decided in advance to hire an African-American
and thereby had engaged in race discrimination. “According
to Lalvani’s evidence, his relationship with management in
the Social Work Department deteriorated markedly after he
filed his complaint with the Commission.” Lalvani I, 269
F.3d at 787. Whereas previously he had received only
praise, from 1989 to 1993, “he endured a long string of
setbacks, including increased work assignments and
disparate treatment with respect to matters such as
discipline, time off, access to resources, and promotions.” Id.
at 787-88. This prompted Lalvani to file several successful
grievances against his supervisors. Then, in July 1995,
Robert Coleman, Director of the CCH Social Work Depart-
ment, lodged several written complaints against Lalvani
suggesting that he was not satisfactorily performing his
duties. Coleman ultimately dropped these charges when
Lalvani challenged them.
A year later, Cook County engaged in a substantial RIF
under which it laid off 500 employees county-wide. CCH
department heads were instructed to observe strict lim-
its on payroll budgets and to reorganize staffing as nec-
essary to meet their departmental service requirements.
Within his department, Coleman eliminated three posi-
tions—the only two Social Worker IV positions and an
Administrative Assistant IV position. At the same time,
he retained four vacant Social Worker II positions and
created a new Assistant Director position. The net effect
of these changes was neutral on the Social Work Depart-
ment’s total salary expenditures.
On December 7, 1996, Lalvani received a letter from
Barbara Penn, CCH Director of Human Resources, stating
that his employment would be terminated “due to a de-
crease in budgeted funds for certain departments.” The
4 No. 03-1922
letter also informed him that he might have recall rights if
his position was certified for civil service purposes
and if positions for which he was qualified became avail-
able. Finally, the letter stated: “Any questions that you may
have relative to benefits or reinstatement rights should be
addressed in writing to the hospital Department of Human
Resources or the Cook County Department of Human
Resources.” Lalvani wrote to Penn, informing her that he
“would like to know what administrative remedies are
available” and inquiring whether he had “the option to
‘bump’ the next lower grade person.” In a letter dated
December 23, 1996, Penn briefly replied that because his
position was not “civil service certified,” Lalvani did “not
have . . . bumping rights to the next lower grade nor recall
rights.” She also informed Lalvani that “there were no other
employees least [sic] senior to [him] in [his] job classifica-
tion that were not affected by the reduction in force.” On
January 4, 1997, Lalvani wrote to Penn: “I do know that
Cook County Hospital Employees, during the Governing
Commission, were under MERIT SYSTEM, which is
equivalent to Civil Service Certified, hence, I understand
that I do have the bumping right to next lower grade.”
Lalvani received no response to his second communication.
Convinced that Coleman had used the RIF to squeeze him
out of the department, Lalvani filed suit. He alleged that
his termination resulted from ethnic discrimination, in
violation of 42 U.S.C. §§ 1981 and 1983 and Title VII, 42
U.S.C. §§ 2000e et seq., and that it was done in retaliation
for his 1989 discrimination complaint, also in violation
of Title VII. In addition, he asserted a § 1983 claim alleging
that County authorities violated his due process rights
when they terminated him. The district court dismissed all
of these claims on summary judgment.
We affirmed with respect to the discrimination and
retaliation claims, but reversed on the due process claim.
See Lalvani I, 269 F.3d at 787. With respect to Lalvani’s
No. 03-1922 5
due process claim, we found that he had “placed suffi-
cient evidence into the record to create a disputed issue
of fact as to whether or not he attained Civil Service
status while CCH was under [the Governing Commission’s]
control.” Id. at 791. If Lalvani could “persuade a jury that
he obtained career employee status while working under
the [Governing Commission],” we explained that our prior
decision in Carston v. County of Cook, 962 F.2d 749 (7th
Cir. 1992), resolved in Lalvani’s favor the question whether
he had a protected property interest in his employment that
triggered due process protection. Lalvani I, 269 F.3d at 792-
93. Thus, “[t]he only remaining question is whether Lalvani
received all the process that would have been due in
connection with his termination.” Id. at 793. While the
district court had “concluded that the minimal process that
Lalvani received was more than sufficient given that CCH
terminated him as part of a RIF,” we found that “a reason-
able jury could conclude that Coleman used the RIF as
pretext for the termination of a career employee,” in which
case Lalvani would be entitled to “full-blown due process.”
Id. at 793-94.
On remand, Lalvani’s case went to trial. The jury
found that Lalvani had proved that he held merit em-
ployee status at the time of the transfer of authority of CCH
from the Governing Commission to Cook County. In
response to the second question posed to it, however, the
jury also found that Lalvani had not “proved by a pre-
ponderance of the evidence that Plaintiff was terminated for
cause,” and it therefore did not reach the question
of damages. Lalvani filed a motion for judgment as a matter
of law coupled with a motion for a new trial in which he
claimed that the jury instructions and special verdict form
misstated the law. The court denied both motions, holding
that Lalvani had not been denied the process to which he
was entitled under the Due Process Clause. Lalvani now
presents the same arguments to this court.
6 No. 03-1922
II
We review jury instructions to determine if, taken as
a whole, they were sufficient correctly to inform the jury
of the applicable law. Fillmore v. Page, 358 F.3d 496, 508
(7th Cir. 2004). In doing so, “we must first determine
whether the instructions in question misstate the law or fail
to state it fully. If this requirement is met, we then deter-
mine whether the inadequate statements confused
or misled the jury causing prejudice to a litigant.” Aliotta v.
Nat’l R.R. Passenger Corp., 315 F.3d 756, 759 (7th Cir.
2003); see Dadian v. Vill. of Wilmette, 269 F.3d 831, 839
(7th Cir. 2001) (“[W]e will reverse a jury verdict only if
we find the error is not harmless, i.e., affected the substan-
tial rights of the parties.”). While “[t]here is no idealized set
of perfect jury instructions, . . . the instructions must be
correct statements of law and supported by the evidence.”
Hefferman v. Bd. of Trs., 310 F.3d 522, 528 (7th Cir. 2002)
(internal citation and quotation marks omitted).
With respect to Lalvani’s due process claim, the dis-
trict court instructed the jury as follows:
1) In order for Plaintiff to establish that the County
deprived Plaintiff of property without due process,
he must show, by a preponderance of the evidence, that:
(a) he had a protected property interest in continued
employment at Cook County Hospital; and (b) that he
was terminated for cause.
***
4) In order for Plaintiff to establish that he was termi-
nated for cause, he must show, by a preponderance of
the evidence, that he was discharged as a result of an
individualized decision concerning him, and not as a
result of the organizational demands of a reduction in
the work force instituted by Cook County Hospital.
The jury was then given two “yes or no” questions to
No. 03-1922 7
answer on the issue of liability, which it marked as follows:
1. The Plaintiff proved by a preponderance of the
evidence that he held merit employee status at
the time of the transfer of authority of Cook County
Hospital from the Health and Hospitals Governing
Commission to Cook County?
YES [X] NO [ ]
2. The Plaintiff proved by a preponderance of the
evidence that Plaintiff was terminated for cause?
YES [ ] NO [X]
The jury’s first finding, for the reasons we gave in Lalvani
I, is enough to establish that Lalvani had a protected
property interest in his continued employment at CCH. 269
F.3d at 792-93.
It is the second response and the instructions that cor-
respond to it that cause the problem here. In Lalvani I,
commenting on the ultimate merits of the case, we re-
jected the notion that a termination “for cause” and a
termination pursuant to a RIF are necessarily mutually
exclusive. Id. at 793. Emphasizing that “the mere intona-
tion of the acronym ‘RIF’” does not have “sweeping con-
stitutional effect,” we explained:
It is true that even public employees with a property
interest in their jobs can be terminated without full-
blown due process hearings if they are properly termi-
nated during a RIF that is not implemented through
individualized decisions about whom to fire. At the
same time, however, a government employer cannot
avoid its procedural obligations if it is picking specific
individuals for lay-off or termination, nor can it use
a RIF to conceal a for-cause dismissal and there-
by deprive a career employee of the procedural pro-
tections to which he would otherwise be entitled.
8 No. 03-1922
Id. (emphasis added) (internal citation omitted).
But the purpose of a due process hearing for an em-
ployee with the equivalent of civil service protection is
precisely to find out whether the termination under the
auspices of a RIF was permissible or not. Under Cook
County’s view of the case, reflected in the district court’s
instructions, no one would ever know if he or she was
entitled to a due process hearing until somehow it was
already clear whether the termination was a legitimate part
of the RIF or if the RIF was being used to mask
an individualized, merit-based action.
The question whether the process Lalvani received
was adequate thus becomes central. In Lalvani I, we de-
scribed that process as follows: “Without prior notice of any
kind, Lalvani received a letter stating that his position was
to be eliminated within the month. He was invited to
inquire by letter regarding any post-termination rights he
might have. He sent a letter and received a reply indicating
that he had no post-termination rights other than those
shared by the general public.” 269 F.3d at 793. As we also
noted in Lalvani I, “in most cases a public employee with a
protectable property interest in his or her job who faces for-
cause termination ‘is entitled to 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.’ ” Id. at 794 (quoting Cleveland Bd. of Educ. v.
Loudermill, 470 U.S. 532, 546 (1985)). While the “pro-
cess—particularly at the pre-termination stage—may be
truncated,” we said that “[t]he letter Lalvani received did
not meet even the minimal standards that apply when a
post-termination procedure is available.” Id.
Based on the jury’s finding that Lalvani was not ter-
minated for cause, the district court held that Lalvani
was not entitled to a pre-termination hearing and “that
the process plaintiff was given with regards to what
No. 03-1922 9
he terms as his post-termination rights was sufficient.” But
the jury should never have been asked to assess the basic
right to due process in terms of whether the ultimate
decision could stand or not. In the cases discussing the
process due an employee terminated pursuant to a RIF,
other courts have generally found pre-termination proce-
dures unnecessary, but they have underscored the availabil-
ity, as well as the importance, of post-termination proce-
dures for affected employees. In Washington Teachers’
Union Local #6 v. Bd. of Educ., 109 F.3d 774 (D.C. Cir.
1997), for example, the court considered a due process claim
by public school teachers who were terminated in the wake
of emergency budget cuts, id. at 779. Balancing the factors
identified in Mathews v. Eldridge, 424 U.S. 319 (1976), the
court acknowledged that the teachers’ property interest in
their jobs “weighs heavily in favor of requiring pre-termina-
tion proceedings,” but it concluded that the risk of errone-
ous deprivation was minimal and that pre-termination
hearings “would have slowed the RIF process considerably.”
Washington Teachers’ Union Local #6, 109 F.3d at 780-81.
While the court held that “due process did not require pre-
termination proceedings before the [ ] RIF,” id. at 781, it
nonetheless stressed the availability of post-termination
relief, including “post-termination hearings if they believe
either that their terminations were discriminatory or
retaliatory, or that notice and separation procedures
were not followed,” id. at 779. See also UDC Chairs Chap-
ter, Am. Ass’n of Univ. Professors v. Bd. of Trs., 56 F.3d
1469 (D.C. Cir. 1995) (finding university faculty who were
denied summer deanship positions had no due process right
to pre-termination procedures under the Mathews balancing
test, but emphasizing their access to an extensive post-
deprivation grievance procedure, including investigation by
an impartial panel); Smith v. Sorensen, 748 F.2d 427, 436
(8th Cir. 1984) (holding that procedures “that were avail-
able to the employees after the implementation of the RIF
guideline provided such protection of their rights that the
10 No. 03-1922
absence of a pretermination hearing alone was not violative
of due process”).
These decisions essentially stand for the proposition
that employees with a protected property interest in
their jobs may not be entitled to any pre-termination
process in a RIF situation, as long as an adequate post-
termination procedure is available to them. As we ob-
served in Lalvani I, CCH provided Lalvani with no pre-
termination procedures and only the most truncated form
of post-termination procedures, if the one letter he received
from Penn even deserves the label “procedure.” Although
Penn’s letter informed Lalvani where to direct “[a]ny
questions [he] may have,” only his first letter to Penn
received a response. When he suggested in his second letter
that he had merit employee status dating from the period
in which the Governing Commission controlled CCH and
that this status accorded him certain rights, his inquiry was
met with silence. Under Loudermill, as well as Washington
Teachers’ Union and Sorensen, we conclude that this was
not enough. The confusion surrounding the jury’s answer to
question 2 is, in the final analysis, irrelevant. Its answer to
question 1 is unambiguous: Lalvani held merit employee
status at the relevant time, and he was thus entitled to due
process protection at the time of the RIF. The process he
received did not measure up to the minimal standards
required. His case must therefore be returned to the district
court for further proceedings on the question of damages.
Lalvani is entitled to recover at least nominal damages, see
Carey v. Piphus, 435 U.S. 247, 266 (1978); if he can prove
actual damages, he is entitled to recover those amounts
also. See also Codd v. Velger, 429 U.S. 624 (1977).
III
The judgment of the district court is REVERSED and
the case is REMANDED for further proceedings consistent
No. 03-1922 11
with this opinion. Circuit Rule 36 shall apply on remand.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—2-3-05