In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-2283
SANDRA KIDDY-BROWN,
Plaintiff-Appellee,
v.
ROD BLAGOJEVICH, individually and as
Governor of the State of Illinois,
ROGER E. WALKER, JR., individually and
as Director of the Illinois Department of
Corrections, JULIE CURRY, individually
and as Deputy Chief of Staff to the
Governor of the State of Illinois, et al.,
Defendants-Appellants.
____________
Appeal from the United States District Court for
the Northern District of Illinois, Eastern Division.
No. 04 C 1293—David H. Coar, Judge.
____________
ARGUED DECEMBER 2, 2004—DECIDED MAY 13, 2005
____________
Before COFFEY, RIPPLE and MANION, Circuit Judges.
RIPPLE, Circuit Judge. After her employment as warden at
an Illinois state prison was terminated, Sandra Kiddy-
Brown brought this action against several Illinois state
2 No. 04-2283
officials. She asserted claims based on 42 U.S.C. § 1983,
alleging that her rights under the First and Fourteenth
Amendments to the Constitution had been violated. The
defendants moved for judgment on the pleadings and
asserted a qualified immunity defense with respect to each
of Ms. Kiddy-Brown’s claims. The district court denied the
defendants’ motion for judgment on the pleadings and
denied them a qualified immunity defense. The defendants
then appealed to this court. For the reasons set forth in this
opinion, we now affirm in part and reverse in part the
judgment of the district court, and we remand the case for
further proceedings.
I
BACKGROUND
A. Facts
Prior to her termination in December 2003, Ms. Kiddy-
Brown had been employed by the Illinois Department of
Corrections (“IDOC”) for more than nineteen years. During
her employment, she had occupied various positions within
IDOC: clerk, residence counselor, correctional counselor,
center supervisor, coordinator and assistant warden. Most
recently, Ms. Kiddy-Brown had held the position of warden
at the Decatur Correctional Center (“DCC”), a position to
which she was promoted in August 2001. From the time Ms.
Kiddy-Brown’s employment with IDOC began until 2003,
the State of Illinois had been led by governors who were
members of the Republican party. In January 2003, Rod
Blagojevich, a Democrat, was inaugurated as Governor of
the State of Illinois.
No. 04-2283 3
B. District Court Proceedings
1.
Ms. Kiddy-Brown’s original complaint was filed on
February 19, 2004. On March 15, 2004, Ms. Kiddy-Brown
filed a first amended complaint. The first amended complaint
named as defendants Governor Rod Blagojevich, individually
and as Governor of the State of Illinois, Roger Walker, Jr.,
individually and as Director of IDOC, Julie Curry, individu-
ally and as Deputy Chief of Staff to the Governor of the
State of Illinois, and Debbie Denning, individually and as
Deputy Director of IDOC (collectively, “the State defen-
1
dants”).
The amended complaint alleged five counts; three of these
counts are at issue in this appeal. Count I claimed that the
State defendants had engaged in politically-motivated
patronage dismissal of Ms. Kiddy-Brown in violation of the
First Amendment. Count II asserted that the State defen-
dants terminated, in violation of the First Amendment, Ms.
Kiddy-Brown’s employment in retaliation for her speech on
matters of public concern. This count alleged that she spoke
out on several matters, “including violations by State of
Illinois employees of federal and state requirements for
filling employment vacancies within IDOC[,] . . . the
unwillingness of Defendants BLAGOJEVICH and WALKER
to staff IDOC facilities at appropriate levels[,] . . . the safety
of IDOC facilities[,] . . . [and] reorganization of IDOC.” R.6
1
The amended complaint also named as defendants Council 31
of the American Federation of State, County and Municipal
Employees (“AFSCME”), Henry Bayer, individually and as
Executive Director of Council 31 of AFSCME, and Buddy Maupin,
individually and as Regional Director of Council 31 of AFSCME
(collectively, “the AFSCME defendants”).
4 No. 04-2283
at 8, ¶¶ 53-58. Count III alleged that defendants Blagojevich
and Walker had violated Ms. Kiddy-Brown’s right to due
process of law under the Fourteenth Amendment to the
federal Constitution by depriving Ms. Kiddy-Brown of a
2
property interest in continued employment.
2
Count IV of Ms. Kiddy-Brown’s amended complaint alleged
that the State defendants had conspired with two of the AFSCME
defendants to terminate Ms. Kiddy-Brown’s employment because
she “was a black woman that was affiliated with the Republican
administration and because [she] was a black woman that lacked
Democratic political sponsorship of Defendant [AFSCME].” R.6
at 13, ¶ 93. Count V alleged, pursuant to 42 U.S.C. § 1986, that
Governor Blagojevich had actual knowledge of the conspiracy
alleged in Count IV, that he had the ability and authority to
prevent that conspiracy and that he did nothing to prevent that
conspiracy. Counts IV and V also identify a person named
“OLIVER” as a member of the conspiracy to deprive Ms. Kiddy-
Brown of her constitutional rights. See, e.g., R.6 at 13, ¶ 93.
Ms. Kiddy-Brown’s original complaint had named Ian Oliver,
Chief of Operations of the Illinois Department of Corrections and
President of the Greater Illinois Chapter of the National Associa-
tion of Blacks in Criminal Justice, as a defendant.
On March 16, 2004, the AFSCME defendants filed a motion to
dismiss Ms. Kiddy-Brown’s complaint, pursuant to Fed. R. Civ. P.
12(b)(1) and 12(b)(6), for lack of subject matter jurisdiction and
for failure to state a claim. The district court dismissed this mo-
tion on March 30, 2004, when the movants failed to appear and
present the motion. On April 28, 2004, the AFSCME defendants
again filed a motion to dismiss, pursuant to Rule 12(b)(6), for
failure to state a claim. The district court deemed the AFSCME
defendants’ motion to dismiss a motion for a more definite
statement and granted the motion. On May 20, 2004, Ms. Kiddy-
Brown filed a notice to dismiss the AFSCME defendants as par-
ties. The district court dismissed and terminated the AFSCME
(continued...)
No. 04-2283 5
On April 28, 2004, the State defendants filed a motion for
judgment on the pleadings. See Fed. R. Civ. P. 12(c). They
contended that they were entitled to replace Ms. Kiddy-
Brown as warden at DCC with “a political loyalist” because
the express written duties of the position included “sub-
stantial policy functions.” R.14 at 2. The State defendants
asserted that, with respect to Count I, the political patronage
claim, even assuming the truth of Ms. Kiddy-Brown’s
allegations, they were entitled to consider political affiliation
when terminating her employment. With respect to Count II,
the retaliation claim, they contended that they were entitled
to judgment because Ms. Kiddy-Brown was “a confidential
policy-maker [who] allegedly openly criticized the State
Officials and their policies,” and, thus, they properly had
terminated her employment after the alleged criticisms. R.14
at 2. With respect to Count III, the due process claim, they
submitted that they were entitled to judgment because Ms.
Kiddy-Brown did not have a protected property interest in
continued employment as the warden at DCC. The State
defendants also contended that they were entitled to qua-
lified immunity with respect to each of Ms. Kiddy-Brown’s
claims.
2.
The district court denied the State defendants’ motion for
judgment on the pleadings. With respect to the claim of
political patronage dismissal, the district court reviewed the
2
(...continued)
defendants as party defendants on May 24, 2004. Also on May 24,
2004, Ms. Kiddy-Brown filed a motion to dismiss without pre-
judice Counts IV and V of the first amended complaint. The
district court granted this motion on May 25, 2004.
6 No. 04-2283
description of the warden position at DCC that had been
developed by the Illinois Department of Central Manage-
ment Services (“CMS position description”) and noted that
aspects of that description resembled the description of a
position for which this court had found political affiliation
was an appropriate requirement. See Thompson v. Illinois
Dep’t of Prof’l Regulation, 300 F.3d 750, 757-58 (7th Cir.
3
2002). The district court also observed, however, that this
court has cautioned against making generalizations, based
on job descriptions, about the appropriateness of political
affiliation as a requirement for a particular employment
position. See Meeks v. Grimes, 779 F.2d 417, 420 (7th Cir.
1985). Therefore, the district court determined that, at the
pleadings stage of the proceedings, there simply was not
enough information to determine whether the warden
3
In Thompson v. Illinois Department of Professional Regulation, 300
F.3d 750 (7th Cir. 2002), this court affirmed the dismissal of a suit
brought by a plaintiff who claimed that he had been removed
from his position as Chief Administrative Law Judge (“ALJ”)
within the Illinois Department of Professional Regulation (“IDPR”)
for exercising his First Amendment rights of speech and political
association. Thompson instructed courts to “look at the nature of
the responsibilities and focus on the duties inherent in an office,
and not the functions of the position performed by a particular
person” when determining whether an employee was in a poli-
cymaking position for which political affiliation was an appropri-
ate requirement. Id. at 756. This court examined a job description
which the plaintiff had attached to his complaint and, noting that
the plaintiff had presented no conflicting allegations to contradict
the job description, determined that the Chief ALJ position had
policymaking duties. See id. at 757. Therefore, the court concluded
that the plaintiff did not have a First Amendment claim that he
was dismissed for political reasons because a government
employer is entitled to require political loyalty from employees
in policymaking positions. See id.at 758.
No. 04-2283 7
position at DCC was a position for which political affiliation
was an appropriate requirement.
The district court then turned to Count II, which alleged
that the State defendants had terminated Ms. Kiddy-Brown’s
employment in retaliation for her speech on matters of
public concern. The district court determined that, because
the record did not permit a conclusion that the warden of
DCC was a policymaking employee, Ms. Kiddy-Brown had
stated a claim upon which relief could be granted. Therefore,
the district court denied the State defendants judgment on
Count II.
The district court then addressed Count III, which alleged
a violation of Ms. Kiddy-Brown’s due process rights when
her employment as warden was terminated without an
opportunity to be heard. The State defendants had argued
that Ms. Kiddy-Brown had no protected property interest in
continued employment. However, the district court ob-
served that the arguments in support of the State defendants’
position required the court to assume facts beyond those al-
leged in the pleadings in order to analyze promises which
Ms. Kiddy-Brown claimed had been made by Governor
Blagojevich. The court determined that, construing the facts
alleged in Ms. Kiddy-Brown’s complaint in the light most
favorable to her, the first amended complaint stated a claim
for relief. Therefore, the district court denied the State
defendants judgment as to Count III.
The district court also denied the State defendants the
defense of qualified immunity. Taking as true Ms. Kiddy-
Brown’s allegations that she had no close contact with IDOC
policymakers, no autonomous or discretionary authority and
no participation in policymaking, the district court determined
that Ms. Kiddy-Brown was protected from patronage dis-
missal based on the law of the Seventh Circuit which was
clearly established at the time Ms. Kiddy-Brown’s employ-
8 No. 04-2283
ment was terminated. On this basis, the district court denied
the State defendants qualified immunity as to Counts I and
4
II of Ms. Kiddy-Brown’s amended complaint.
With respect to Count III, Ms. Kiddy-Brown’s due process
claim, the district court observed that clearly-established
law gave Ms. Kiddy-Brown “a constitutional right to con-
tinued employment in the face of an inappropriate patronage
dismissal.” R.35 at 13. The court reasoned that, whether
or not Ms. Kiddy-Brown had a right to continued employ-
ment, it still “would be a due process violation to terminate
Kiddy-Brown for reasons of political patronage, if she is the
type of employee for which patronage dismissals are
forbidden.” R.35 at 13. Thus, construing all allegations in
Ms. Kiddy-Brown’s favor, the district court determined that
the State defendants were not entitled to qualified immunity
as to Count III of Ms. Kiddy-Brown’s amended complaint.
II
ANALYSIS
A. Qualified Immunity Standards
Government officials performing discretionary functions
are entitled to qualified immunity from suit “as long as their
4
The district court’s exact language stated that “qualified immu-
nity is not a bar to Counts II and III of Plaintiff’s Amended
Complaint.” R.35 at 13. We are convinced, for several reasons,
that the district court in fact meant to state that the State defen-
dants could not assert qualified immunity as a defense to Counts
I and II of Ms. Kiddy-Brown’s amended complaint: (1) the district
court had determined in the paragraph immediately preceding
this sentence that the warden position at DCC was protected
from patronage firings; (2) it did not discuss Count I anywhere
else in the section of its memorandum opinion devoted to
qualified immunity; and (3) it turned next to Count III.
No. 04-2283 9
actions could reasonably have been thought consistent with
the rights they are alleged to have violated.” Anderson v.
Creighton, 483 U.S. 635, 638 (1987). The issue of qualified
immunity is to be resolved at the earliest stages of litigation.
See Delgado v. Jones, 282 F.3d 511, 515 (7th Cir. 2002) (citing
Harlow v. Fitzgerald, 457 U.S. 800, 818-19 (1982)).
Although the district court’s denial of the State defendants’
motion for judgment on the pleadings did not put an end to
this case in the district court, this court nonetheless has
jurisdiction to review the limited question of whether the
district court properly denied judgment on the pleadings on
qualified immunity grounds. See Mitchell v. Forsyth, 472 U.S.
511, 530 (1985). “[A] district court’s denial of a claim of
qualified immunity, to the extent that it turns on an issue of
law, is an appealable ‘final decision’ within the meaning of
28 U.S.C. § 1291 notwithstanding the absence of a final
judgment.” Id. On the other hand, this court may not recon-
sider the district court’s determination that certain genuine
issues of fact exist; such determinations are unappealable
because they are not “final decisions” within the meaning of
28 U.S.C. § 1291. See Johnson v. Jones, 515 U.S. 304, 313 (1995).
This court may review whether the district court correctly
decided any questions of law that it considered. See Mitchell,
472 U.S. at 528.
Our review of the denial of qualified immunity, made in
the context of a motion for judgment on the pleadings, fo-
cuses on two conditions, both of which must be satisfied in
order for a plaintiff to defeat a qualified immunity defense:
(1) “the complaint must adequately allege facts that, if true,
would constitute a violation of a constitutional right,” and
(2) “the case law must be ‘clearly established’ at the time of
the alleged violation, so that a reasonable public official
would have know[n] that his conduct was unlawful.”
Delgado, 282 F.3d at 515-16. The burden is on the plaintiff
10 No. 04-2283
to prove that a right was clearly established at the time of
the conduct at issue. Davis v. Scherer, 468 U.S. 183, 197 (1984).
“To prove the presence of a clearly established constitutional
right, the plaintiff must point to closely analogous cases de-
cided prior to the defendants’ challenged actions.” Upton v.
Thompson, 930 F.2d 1209, 1212 (7th Cir. 1991) (internal
quotations omitted).
Thus, according to the established framework for quali-
fied immunity inquiries, we shall begin by asking whether,
taking all Ms. Kiddy-Brown’s allegations to be true, she has
established that her constitutional rights were violated. If
she has not alleged facts sufficient to establish a constitu-
tional violation, then the State defendants will be entitled to
qualified immunity. On the other hand, if we find that Ms.
Kiddy-Brown’s allegations do state a violation of con-
stitutional law, then we shall be required to consider
whether the law was clearly established such that the State
defendants should have known that their actions violated
the Constitution.
B. Count I: Patronage Dismissal
We turn first to the State defendants’ contention that
they are entitled to a qualified immunity defense against
Ms. Kiddy-Brown’s claim that she was subject to improper
patronage dismissal. The State defendants submit that
Ms. Kiddy-Brown has not alleged a constitutional violation.
They contend that the warden at DCC is required to “make
actual policy,” to implement policies and to provide “mean-
ingful input” into the decisions of other policymakers,
Appellants’ Br. at 22 (emphasis in original), thus making
political affiliation an “appropriate requirement” for the posi-
tion. Branti v. Finkel, 445 U.S. 507, 518 (1980). In particular,
they urge that we consider the CMS position description,
No. 04-2283 11
which the State defendants attached to their answer. R.9,
5
Ex.A at 1-2. In the alternative, they claim that it was not
clearly established, at the time that Ms. Kiddy-Brown’s
employment was terminated, that subjecting her to patron-
age dismissal would violate the law.
1.
Employing the established two-step inquiry to determine
whether the defense of qualified immunity has been estab-
lished, we begin by asking whether Ms. Kiddy-Brown has
alleged facts which, if true, constitute a violation of a con-
stitutional right. Ms. Kiddy-Brown’s claim for patronage
dismissal in violation of the First Amendment is premised
on the idea that “the First Amendment forbids government
officials to discharge or threaten to discharge public em-
5
According to the position description supplied by the Illinois
Department of Central Management Services (“CMS position
description”), R.9, Ex.A at 1-2, the warden at DCC “administers
and directs the overall operations, programs and activities of
[DCC]; formulates policy, procedures, rules, regulations and in-
stitutional directives for employees and inmates; directs, assigns,
[and] evaluates work activities and areas of responsibility for all
department heads; [and] plans and approves facility’s fiscal
budget.” R.9, Ex.A at 1. The CMS position description also breaks
down the warden’s duties by describing particular functions of
the warden position and identifying the percentage of the
warden’s time which should be spent on each function. For
instance, according to the CMS position description, the largest
block of the warden’s time (35 percent) is spent “[f]ormulat[ing]
and implement[ing] rules, . . . policies and procedures governing
employees and inmates; plan[ning] and direct[ing] overall oper-
ations . . .; direct[ing] pivotal employees . . .; [and] appl[ying]
preventive security measures enforcing policy . . . .” Id.
12 No. 04-2283
ployees solely for not being supporters of the political party
in power, unless party affiliation is an appropriate require-
ment for the position involved.” Rutan v. Republican Party of
Illinois, 497 U.S. 62, 64 (1990). “To prevail [on a claim of
patronage dismissal], . . . public employees need show only
that they were discharged because they were not affiliated
with or sponsored by” a certain political party. Id. at 71
(citing Branti, 445 U.S. at 517).
The Supreme Court has recognized that “party affiliation
may be an acceptable requirement for some types of govern-
ment employment.” Branti, 445 U.S. at 517; see also Elrod v.
Burns, 427 U.S. 347, 360 (1976) (plurality opinion) (“Al-
though the practice of patronage dismissals clearly infringes
First Amendment interests, . . . the prohibition on encroach-
ment of First Amendment interests is not an absolute.”).
Ultimately, a defendant bears the burden of establishing
that a plaintiff’s position falls within the exception to the
general prohibition on patronage dismissal. See Milazzo v.
6
O’Connell (Milazzo I), 108 F.3d 129, 132 (7th Cir. 1997).
The Supreme Court initially framed the inquiry whether
political affiliation is an appropriate requirement for em-
ployment in terms of whether a particular position involves
confidential and policymaking responsibilities. See, e.g.,
6
See also Matlock v. Barnes, 932 F.2d 658, 663 (7th Cir. 1991) (“In
political patronage cases, defendants bear the burden of establish-
ing that political affiliation is an appropriate qualification for the
job from which plaintiff is ousted.”); Grossart v. Dinaso, 758 F.2d
1221, 1226 (7th Cir. 1985) (“It should be stressed that the [govern-
ment defendant] carries the burden [to show discharged em-
ployee was a policymaker], inasmuch as the policymaker ex-
ception constitutes a legitimate government interest that overrides
the infringement of fundamental first and fourteenth amendment
rights.”).
No. 04-2283 13
Elrod, 427 U.S. at 375 (Stewart, J., concurring in judgment);
see also id. at 367 (plurality opinion). However, the Court has
since recognized that “[u]nder some circumstances, a
position may be [one in which political affiliation is a
legitimate factor to be considered] even though it is neither
confidential nor policymaking in character,” and that “party
affiliation is not necessarily relevant to every policymaking
or confidential position.” Branti, 445 U.S. at 518. In short,
“the ultimate inquiry is not whether the label ‘policymaker’
or ‘confidential’ fits a particular position; rather the question
is whether the hiring authority can demonstrate that party
affiliation is an appropriate requirement for the effective
performance of the public office involved.” Id.
Even though Branti established this “broad[ ]” line of in-
quiry in political discharge cases, Soderbeck v. Burnett County,
Wisconsin, 752 F.2d 285, 288 (7th Cir.), cert. denied, 471 U.S.
1117 (1985), this court has recognized that the terms
“ ‘[p]olicymaking’ and ‘confidential’ do accurately describe
the vast majority of offices that fall within the realm of
legitimate patronage under the Branti formulation,” Meeks,
779 F.2d at 420. The State defendants contend that the
warden position at issue here involved policymaking. Thus,
we begin our inquiry into whether this exception to the First
Amendment’s prohibition on patronage dismissals applies
by looking for “policymaking powers.” Thompson, 300 F.3d
at 756.
The test for whether a position involves policymaking is
“whether the position authorizes, either directly or indi-
rectly, meaningful input into government decisionmaking
on issues where there is room for principled disagreement
on goals or their implementation.” Nekolny v. Painter, 653
F.2d 1164, 1170 (7th Cir. 1981), cert. denied, 455 U.S. 1021
(1982). To make this determination, we must “examin[e] . . .
the powers inherent in a given office, as opposed to the
functions performed by a particular occupant of that office.”
14 No. 04-2283
Tomczack v. City of Chicago, 765 F.2d 633, 640 (7th Cir.), cert.
denied, 474 U.S. 946 (1985). Therefore, even “if an office-
holder performs fewer or less important functions than
usually attend his position, he may still be exempt from the
prohibition against political terminations if his position inher-
ently encompasses tasks that render his political affiliation
an appropriate prerequisite for effective performance.” Id.
at 641. From this court’s cases, it is clear that the question
whether an employee has policymaking powers “in many
cases presents a difficult factual question.” Nekolny, 653 F.2d
at 1169; see also Meeks, 779 F.2d at 419-20 (describing Branti,
445 U.S. at 518, as mandating “a more functional analysis”
of whether a particular employee is protected by patronage
dismissal).
Because this case is before us on a motion for judgment on
the pleadings, we must view all allegations in the pleadings
in the light most favorable to Ms. Kiddy-Brown. GATX
Leasing Corp. v. Nat’l Union Fire Ins. Co., 64 F.3d 1112, 1114
(7th Cir. 1995). According to Ms. Kiddy-Brown, her “duties
and responsibilities as Warden were . . . of limited scope.” R.6
at 3, ¶ 14. For instance, she “had no autonomous or discre-
tionary authority”; she “did not participate in determining
policy which fixed objectives”; she “did not act authorita-
tively on any policy-making issue impacting the State . . . or
IDOC”; and her “responsibilities were tightly constrained
by . . . statutes, regulations and rules.” R.6 at 5-6, ¶¶ 30-37.
Furthermore, according to Ms. Kiddy-Brown, the State
defendants knew of her “political affiliation with the
Republican administration and her lack of Democratic poli-
tical sponsorship” and were motivated to terminate her
employment because she was not “a political ally of the
Democratic administration.” R.6 at 4, ¶¶ 22-24. In fact, she
alleges that she “was informed that she was being terminated
because of her affiliation with the Republican administra-
tion.” R.6 at 5, ¶ 27.
No. 04-2283 15
Based on these allegations in the complaint, we must
conclude that Ms. Kiddy-Brown has alleged facts that, if
true, would demonstrate the violation of a constitutional
right. See Rutan, 497 U.S. at 71. We also must conclude that,
at this very early stage of the litigation, the State defendants
have not shown that the warden position at DCC is exempt
from the general prohibition on political patronage dismis-
sals. See Milazzo, 108 F.3d at 132. We simply are not pre-
sented with evidence sufficient to allow us to conclude that
the warden position involved the kind of policymaking
duties that would make political affiliation an appropriate
requirement for the position.
2.
“After establishing that the plaintiff has adequately al-
leged a violation of a constitutional right, the second . . .
inquiry in a qualified immunity analysis involves whether
the law was ‘clearly established’ at the time of the alleged
violation.” Delgado, 282 F.3d at 520. Ms. Kiddy-Brown bears
the burden of showing that the right in question was clearly
established. See Lunini v. Grayeb, 395 F.3d 761, 769 (7th Cir.
2005).
The State defendants contend that it was not clearly es-
tablished at the time Ms. Kiddy-Brown’s employment was
terminated that dismissing the warden at a state prison
would violate the Constitution. They submit that “there are
no closely analogous cases . . . involving the position at issue—
Warden of a state correctional institution.” Appellants’
Br. at 28. However, the law of qualified immunity does not
require a plaintiff to produce a case that is “directly on point”
in order to show that a right is clearly established. Nabozny
v. Podlesny, 92 F.3d 446, 456 (7th Cir. 1996). “The question is
16 No. 04-2283
whether a reasonable state actor would have known that his
actions, viewed in the light of the law at the time, were
unlawful.” Id.
As we noted earlier, because this case is before us on a
motion for judgment on the pleadings, we are obliged—as
was the district court—to view the facts alleged in
Ms. Kiddy-Brown’s complaint in the light most favorable to
her. See Flenner v. Sheahan, 107 F.3d 459, 465 (7th Cir. 1997).
According to Ms. Kiddy-Brown, she had no “discretionary
policymaking powers” and “no meaningful input into gov-
ernment decision making on issues where there was room
for principled disagreement on goals.” R.6 at 5-6, ¶¶ 34, 37.
Accepting these allegations as true, Ms. Kiddy-Brown was
among the employees who have a right not to be subjected
to patronage dismissal.
We think the law was sufficiently clear at the time
Ms. Kiddy-Brown was dismissed that a reasonable official
would have understood that political affiliation was not an
appropriate requirement for a position such as the one de-
scribed in Ms. Kiddy-Brown’s complaint. It long has been
clear that the First Amendment forbids politically-motivated
patronage dismissals of certain employees. See Flenner, 107
F.3d at 462; Mitchell v. Randolph, 215 F.3d 753, 757 (7th Cir.
2000); see also Elrod, 427 U.S. 347. This court has held clearly
that political affiliation is a legitimate criterion for govern-
ment employment only for those positions that “authorize[ ],
either directly or indirectly, meaningful input into govern-
ment decisionmaking on issues where there is room for
principled disagreement on goals or their implementation.”
Nekolny, 653 F.2d at 1170; see also Meeks, 779 F.2d at 420.
This court already has rejected the position that there
must be a case involving the position at issue in order to
defeat qualified immunity. In Flenner, we observed that,
No. 04-2283 17
“[a]s early as 1975, this court rejected the notion that labels
or job titles are relevant to the inquiry whether patronage
dismissal is permissible,” and that, “as of 1993, the law was
clear that the permissibility of dismissing an employee for
patronage reasons was determined by reference to the in-
herent powers of the particular office, not to the title of that
office.” 107 F.3d at 463-64. Thus, we must conclude that,
by 2003, it was well-established that the First Amendment
prohibits a state official from dismissing, on political grounds,
an employee who was not charged with policymaking duties.
The truth of Ms. Kiddy-Brown’s factual allegations re-
garding the duties inherent in the warden position must be
resolved by the district court on a more complete record.
Once the record is developed, the district court may be
asked to revisit the issue of qualified immunity. See Flenner,
107 F.3d at 465. However, at this stage in the proceedings,
we must conclude that the law on this point was clearly
established when Ms. Kiddy-Brown’s employment was ter-
minated in late 2003. Therefore, we affirm the district court’s
denial of qualified immunity to the State defendants with
respect to Count I of Ms. Kiddy-Brown’s amended complaint.
C. Count II: Retaliation
The State defendants also contend that they are entitled to
a qualified immunity defense against Ms. Kiddy-Brown’s
claim that they retaliated against her for speaking out on mat-
ters of public concern. They submit that the First Amendment
does not prohibit dismissing an employee with policymak-
ing power who publicly criticizes her superiors. The State
defendants assert that Ms. Kiddy-Brown was a policymaking
employee and, therefore, that they did not act unconstitu-
tionally in terminating her employment after she engaged
in speech which she admits criticized the State defendants
and IDOC policies. In particular, the State defendants contend
18 No. 04-2283
that the analysis outlined in Pickering v. Board of Education,
391 U.S. 563 (1968), does not apply to this case because
Ms. Kiddy-Brown was a policymaking employee. In the
alternative, the State defendants claim that the law on this
question was not clearly established.
1.
Employing once again the two-step inquiry with respect
to the qualified immunity defense, Ms. Kiddy-Brown first
must allege facts which, if true, would demonstrate the vio-
lation of a constitutional right. “[T]he government cannot
retaliate against its employees for engaging in constitution-
ally protected speech.” Vargas-Harrison v. Racine Unified Sch.
Dist., 272 F.3d 964, 970 (7th Cir. 2001). In order to establish
a First Amendment retaliation claim, a plaintiff must show
(1) that she engaged in constitutionally-protected speech
and (2) that her speech was “a substantial or motivating
factor in the defendants’ challenged actions.” Horwitz v. Bd.
of Educ. of Avoca Sch. Dist. 37, 260 F.3d 602, 618 (7th Cir. 2001).
The government bears the burden of justifying the em-
ployee’s discharge. Caruso v. De Luca, 81 F.3d 666, 670 (7th
Cir. 1996); see also Connick v. Myers, 461 U.S. 138, 150 (1983).
Generally, if a public employee’s speech was on a matter
of public concern, “[the speech] is protected if her interest in
that expression outweighs the State’s interest in promoting
the efficiency of its public services.” Caruso, 81 F.3d at 670.
It is axiomatic in First Amendment jurisprudence that “a
public employee does not shed [her] First Amendment
rights at the steps of the government building.” Vargas-
Harrison, 272 F.3d at 970; see also Connick, 461 U.S. at 142 (“[A]
State cannot condition public employment on a basis that
infringes [an] employee’s constitutionally protected interest
in freedom of expression.”). However, the First Amendment’s
No. 04-2283 19
protection of public employee speech is not absolute, be-
cause “the State has interests as an employer in regulating
the speech of its employees that differ significantly from
those it possesses in connection with regulation of the speech
of the citizenry in general.” Pickering, 391 U.S. at 568. Thus,
courts faced with a public employee’s First Amendment
retaliation claim must balance “the interests of the [employee],
as a citizen, in commenting on matters of public concern
and the interest of the State, as an employer, in promoting
the efficiency of the public services it performs through its
7
employees.” Id.
However, relying in part on cases concerning political
patronage, this court has determined that, in cases involving
the dismissal of an employee in a policymaking position,
“there is no need for a fact-specific analysis of the circum-
7
This court, applying the balancing test from Pickering v. Board
of Education, 391 U.S. 563 (1968), has identified seven circum-
stance-specific factors which should be taken into consideration
in the determination of whether the government’s interest suf-
ficiently outweighs an employee’s First Amendment interests.
See, e.g., Wright v. Illinois Dep’t of Children & Family Servs., 40 F.3d
1492 (7th Cir. 1994). The seven factors to be balanced are:
(1) whether the statement would create problems in main-
taining discipline by immediate supervisors or harmony
among co-workers; (2) whether the employment relationship
is one in which personal loyalty and confidence are neces-
sary; (3) whether the speech impeded the employee’s ability
to perform her daily responsibilities; (4) the time, place, and
manner of the speech; (5) the context in which the underlying
dispute arose; (6) whether the matter was one on which
debate was vital to informed decisionmaking; and (7)
whether the speaker should be regarded as a member of the
general public.
Id. at 1502.
20 No. 04-2283
stances of each case” mandated by Pickering. Vargas-Harrison,
8
272 F.3d at 971. Thus, under the so-called “policy-maker
corollary to the Pickering analysis,” “the First Amendment
does not prohibit the discharge of a policy-making employee
when that individual has engaged in speech on a matter of
public concern in a manner that is critical of superiors or
their stated policies.” Id. at 971-72; see also Bonds v. Milwaukee
County, 207 F.3d 969, 977 (7th Cir.), cert. denied, 531 U.S. 944
(2000).
As we discussed earlier in this opinion, Ms. Kiddy-Brown
has alleged facts which, if true, would be sufficient to show
that she was not a policymaking employee. Furthermore,
Ms. Kiddy-Brown’s first amended complaint alleges that she
had a weighty interest “in acting as a responsible citizen,
and in speaking out on matters of public concern,” and that,
9
as a result, her speech was protected by the First Amendment.
8
This exception is based on the rationale that:
An elected official is entitled to insist on the loyalty of his
policymaking subordinates . . . . It would be a strange rule
that gave more job protection to policymaking employees
who vociferously attack their superiors . . . . It would give
policymaking employees and other sensitive employees an
incentive to attack their bosses in order to retain their jobs.
Wilbur v. Mahan, 3 F.3d 214, 218-19 (7th Cir. 1993).
9
According to Ms. Kiddy-Brown’s complaint, her speech was
directed at issues such as “violations by State of Illinois employ-
ees of federal and state requirements for filling employment
vacancies within IDOC” and “the interference of labor and other
non-governmental organizations in the process of filling em-
ployment vacancies.” R.6 at 8, ¶¶ 53-55. Her amended complaint
further alleges that she spoke out about “the unwillingness of
Defendants BLAGOJEVICH and WALKER to staff IDOC facilities
(continued...)
No. 04-2283 21
R.6 at 8, ¶¶ 53-61. We must assume, on this record, at this
early stage of the proceedings, that her interest in speaking
outweighs any state interest. We also assume, as we must on
this record, the truth of her claims that her speech was the
substantial or motivating factor in causing the State defen-
dants to terminate her employment.
In short, these allegations, if true, would establish a
constitutional violation. Thus, at this stage in the proceed-
ings, we must conclude that Ms. Kiddy-Brown has alleged
facts which, if true, demonstrate that the State defendants
violated the Constitution by retaliating against her for her
speech. We stress, again, that the district court, presented
with a better-developed record, may find that Ms. Kiddy-
Brown’s factual allegations do not portray accurately her
situation. However, at this stage in the proceedings, we
must conclude that Ms. Kiddy-Brown has alleged sufficient
facts to meet the first part of the qualified immunity inquiry.
2.
We now turn to the second part of the qualified immunity
inquiry—whether the law was clearly established when Ms.
Kiddy-Brown’s employment was terminated in December
2003. The State defendants assert that the law on this issue
9
(...continued)
at appropriate levels” and “the safety of IDOC facilities.” R.6 at
8, ¶¶ 56-57. We have no problem assuming, at this stage, that
these issues are matters of public concern as described by Connick
v. Myers, 461 U.S. 138, 146 (1983), and Pickering, 391 U.S. at 571-
72. See also, e.g., Rhodes v. Chapman, 452 U.S. 337, 349 n.14 (1981)
(noting that a prison’s internal security and “[t]he danger of
prison riots” present “a serious concern, shared by the public as
well as by prison authorities and inmates”).
22 No. 04-2283
was not clearly established at the time Ms. Kiddy-Brown’s
employment was terminated because there are no cases that
held that the warden of a state prison may not be termi-
nated for her political speech.
At the outset, as we have discussed earlier, a plaintiff
is not required to produce a case that is “directly on point”
in order to overcome a defendant’s assertion of qualified
immunity. Nabozny, 92 F.3d at 456. Instead, a plaintiff is re-
quired to show that the right in question was clearly estab-
lished at the time the alleged violation occurred; that is, that
“[t]he contours of the right [were] sufficiently clear that a
reasonable official would understand that what he is doing
violates that right.” Anderson, 483 U.S. at 640. The action’s
unlawfulness must be “apparent” from pre-existing law. Id.
Given the procedural posture of the case, we must assume
that Ms. Kiddy-Brown is not a policymaker. “It is clearly
established that a State may not discharge an employee on
a basis that infringes that employee’s constitutionally pro-
tected interest in freedom of speech.” Rankin v. McPherson,
483 U.S. 378, 383 (1987). If the district court later concludes,
on an augmented record, that Ms. Kiddy-Brown held a pol-
icymaking position, the district court will be required to
determine whether the so-called “policy-maker corollary to
the Pickering analysis” applies; that is, whether Ms. Kiddy-
Brown, as a policymaker, “engaged in speech on a matter of
public concern in a manner that [was] critical of superiors or
their stated policies.” Vargas-Harrison, 272 F.3d at 971-72. On
this record, however, we must affirm the district court’s
denial of qualified immunity to the State defendants with
respect to Count II of Ms. Kiddy-Brown’s amended complaint.
D. Count III: Due Process
We turn finally to the State defendants’ contention that
they are entitled to qualified immunity as a defense to
No. 04-2283 23
Ms. Kiddy-Brown’s claim that she was deprived of a consti-
tutionally protected property interest without due process of
law. The district court concluded that the State defendants
were not entitled to judgment as a matter of law on
Ms. Kiddy-Brown’s due process claim. The court reasoned
that, because there exist situations in which a government
official’s promise gives rise to an employee’s constitution-
ally protected property interest, see Gorman v. Robinson, 977
F.2d 350, 356-57 (7th Cir. 1992), and because the details of
Governor Blagojevich’s alleged oral statements were not
clear, the facts construed in the light most favorable to
Ms. Kiddy-Brown would entitle her to relief. On this appeal,
the State defendants contend that Ms. Kiddy-Brown cannot
establish that she had a protected property interest in
continued employment as the warden at DCC. In the
alternative, they submit that the law on this question was
not clearly established.
In order to demonstrate that she has been subject to a due
process violation, a plaintiff must show (1) that she had a
constitutionally protected property interest, (2) that she suf-
fered a loss of that interest amounting to a deprivation and
(3) that the deprivation occurred without due process of law.
See Polenz v. Parrott, 883 F.2d 551, 555 (7th Cir. 1989). Our
analysis in this case focuses on the first required showing.
A protected property interest in a benefit such as govern-
ment employment is “more than an abstract need or desire”
for the benefit; a person “must . . . have a legitimate claim of
entitlement to it.” Bd. of Regents v. Roth, 408 U.S. 564, 577
(1972). “A protected property interest in employment can
arise from a state statute, regulation, municipal ordinance,
or an express or implied contract—those ‘rules or under-
standings that secure certain benefits and that support claims
of entitlement to those benefits.’ ” Johnson v. City of Fort Wayne,
91 F.3d 922, 943 (7th Cir. 1996) (quoting Border v. City of
24 No. 04-2283
Crystal Lake, 75 F.3d 270, 273 (7th Cir. 1996)); see also Shlay v.
Montgomery, 802 F.2d 918, 921 (7th Cir. 1986) (holding that a
property interest in continued government employment “can
be created in one of two ways: (1) ‘by an independent source
such as a state law securing certain benefits’ or (2) ‘a clearly
implied promise of continued employment’ ” (quoting Munson
v. Friske, 754 F.2d 683, 692 (7th Cir. 1985))). Because Ms. Kiddy-
Brown was employed in Illinois, we look to Illinois law to
determine whether she had a property interest in her pos-
ition as warden. See Johnson, 91 F.3d at 943.
The State defendants contend—and Ms. Kiddy-Brown
appears to agree—that Ms. Kiddy-Brown cannot point to any
state statutory provision that protected her from termina-
tion. Indeed, the Illinois Personnel Code, 20 Ill. Comp. Stat.
415/1 et seq., “generally provide[s] employees subject to
its procedures a hearing prior to termination for cause.”
Crull v. Sunderman, 384 F.3d 453, 460 (7th Cir. 2004); see 20
Ill. Comp. Stat. 415/8b.16 (providing “[f]or hearing before
discharge or demotion with the prior approval of the
Director of Central Management Services only for cause
after appointment is completed, after the person to be dis-
charged or demoted has been presented in writing with
the reasons requesting such discharge or demotion”). How-
ever, Ms. Kiddy-Brown’s position as warden specifically
is exempted from the protections just described. See
20 Ill. Comp. Stat. 415/4d(2) (exempting the “administrative
head of each State . . . correctional institution” from Person-
nel Code protections, including those of section 415/8b.16).
Therefore, Ms. Kiddy-Brown does not have a property
interest arising from the Personnel Code.
We turn now to consider other possible sources of prop-
erty interests. “A property interest in employment arises if
there are rules of mutually explicit understandings to sup-
No. 04-2283 25
port a claim of entitlement.” Gorman, 977 F.2d at 356 (inter-
10
nal quotations omitted). The sufficiency of the claim of
entitlement is determined by reference to state law. Id.
Ms. Kiddy-Brown submits that she had a property interest
in continued employment based on assurances made to her
by Governor Blagojevich. She contends that Governor
Blagojevich made oral statements to her and other people
employed by the State of Illinois, promising that he would
not “purge state government of . . . men and women who
were hired during Republican administrations.” R.6 at 11, ¶
78. She also claims that Governor Blagojevich “promised
that if men and women working for the State of Illinois were
satisfactorily performing necessary jobs, they would not be
terminated by his administration.” Id. Ms. Kiddy-Brown
submits that these alleged statements were sufficient to
create a property interest in continued employment.
The State defendants advance four arguments in sup-
port of their position that Governor Blagojevich’s alleged
statements did not create a protected property interest in
continued employment. We shall not address all of the ar-
guments because we conclude that the first two of the State
defendants’ four arguments are sufficient to defeat Ms. Kiddy-
Brown’s due process claim at the judgment on the pleadings
stage. Specifically, we conclude that Governor Blagojevich
lacked the necessary authority to bind IDOC to a contract
with Ms. Kiddy-Brown. Furthermore, the alleged oral state-
10
See also Miller v. Crystal Lake Park Dist., 47 F.3d 865, 867 (7th Cir.
1995) (“Statutes and regulations are not the only sources of
property, but when they are missing the claimant must supply
some equivalent expectancy that was legally enforceable . . . such
as a mutually binding obligation . . . . ‘Mutually binding obliga-
tion’ is just fancy language for ‘contract’ . . . .”) (internal quota-
tions and citations omitted).
26 No. 04-2283
ments were not sufficiently clear and definite to constitute
11
an offer of employment.
We have held that it is “firmly established that the mutu-
ally explicit understandings that constitute property inter-
ests . . . cannot be based on the representations of government
officials who are not authorized to make such representa-
tions.” Wolf v. City of Fitchburg, 870 F.2d 1327, 1334 (7th Cir.
1989) (internal quotations omitted). Ms. Kiddy-Brown has
the burden to demonstrate that Governor Blagojevich had
the authority to bind the State. See Schoenberger v. Chicago
Transit Auth., 405 N.E.2d 1076, 1080 (Ill. App. Ct. 1980).
Ms. Kiddy-Brown contends that the Illinois Constitution,
Illinois statutes and an executive order issued by Governor
Blagojevich all vested him with the authority to bind the State
to an oral employment contract. She submits that, because
the Illinois Constitution provides that “the Governor shall
have the supreme executive power, and shall be responsible
for the faithful execution of the laws,” Ill. Const. art. V, § 8,
Governor Blagojevich has administrative authority over IDOC.
Without further specific authority, and Ms. Kiddy-Brown
cites none, we cannot conclude that this broad provision
authorizes the Governor to bind the State to an employment
contract with Ms. Kiddy-Brown.
With respect to the Illinois statutes, Ms. Kiddy-Brown
submits that Governor Blagojevich (along with defendant
Walker) is “authorized to make IDOC employment deci-
11
The State defendants also assert that Ms. Kiddy-Brown did not
provide any consideration in return for the alleged offer of con-
tinued employment and that any alleged oral contract would be
unenforceable under the Statute of Frauds.
No. 04-2283 27
12
sions pursuant to” several Illinois statutes. R.6 at 11, ¶ 76.
However, these statutory provisions do not specifically give
the Governor of Illinois authority to bind the State to an oral
13
employment contract. In fact, one of the Illinois statutes
Ms. Kiddy-Brown cites, which she alleges grants the
Governor authority to bind the State by his promises,
specifically vests the head of the Department of Corrections
with authority to appoint the administrative officers of
the Department. See 730 Ill. Comp. Stat. 5/3-2-2; see also
20 Ill. Comp. Stat. 5/5-20. After reviewing these authorities,
we think it is clear that Illinois statutes do not grant the
Governor the authority to bind the State.
12
Ms. Kiddy-Brown claims that the following statutes vest the
Governor with authority to bind the state to an oral contract:
730 Ill. Comp. Stat. 5/3-2-2; 20 Ill. Comp. Stat. 5/5-15; 20
Ill. Comp. Stat. 5/5-20; and 20 Ill. Comp. Stat. 5/5-645. See R.6
at 11, ¶ 76.
13
For instance, 730 Ill. Comp. Stat. 5/3-2-2 simply establishes the
powers and duties of the Illinois Department of Corrections and
authorizes the Department of Corrections “[t]o appoint and re-
move the chief administrative officers, and administer programs
of training and development of personnel of the Department,”
but it does not vest any hiring or firing powers in the Governor.
20 Ill. Comp. Stat. 5/5-15 simply creates the Department of
Corrections. 20 Ill. Comp. Stat. 5/5-20 establishes that the
Director of Corrections heads the Department of Corrections and
calls for the Director of Corrections, “subject to the provisions of
the Civil Administrative Code of Illinois, [to] execute the powers
and discharge the duties vested by law in his or her respective
department.” 20 Ill. Comp. Stat. 5/5-645 permits departments,
such as IDOC, to “obtain necessary employees,” and makes no
reference to the Governor. Thus, none of the cited provisions of
Illinois law provide the Governor with the authority to bind the
State to an oral employment contract.
28 No. 04-2283
Ms. Kiddy-Brown also contends that Governor Blagojevich,
on January 14, 2003, issued “Executive Order Number 1 re-
garding employment decisions under his control.” R.6 at 11,
¶ 77. According to Ms. Kiddy-Brown, “Executive Order 1
mandates that all employment decisions regarding state em-
ployment, including IDOC, are to be made by [Governor]
Blagojevich.” R.6 at 11, ¶ 77. Although Ms. Kiddy-Brown
asserts otherwise, the Supreme Court’s decision in Rutan,
497 U.S. 62, does not establish the proposition that an
executive order can provide a governor with sufficient
authority to bind the state to an oral employment contract.
The Court’s opinion in Rutan merely noted that the Illinois
Governor at issue in that case had issued an executive order
directing a “hiring freeze,” allowing the Governor’s office
“to limit state employment and beneficial employment-
related decisions to those who [were] supported by the
Republican Party.” Id. at 65-66. The Rutan opinion did not
concern the effect that an executive order has on the Gover-
nor’s authority to bind the State, by his oral promises, to
employment contracts. Ms. Kiddy-Brown has cited no other
authority besides Rutan to demonstrate that a governor may,
by executive order, confer on himself the authority to bind
the state. What is more, as the State defendants point out,
the executive order to which Ms. Kiddy-Brown refers pro-
vided that “no agency” of the State could “hire any employee”
without “express written permission” from the Governor’s
office, see R.18, Ex.H; this order purported to impose a “freeze”
on state hiring, not to grant Governor Blagojevich additional
powers to bind the State.
As a result, we must conclude that Ms. Kiddy-Brown has
not met her burden to show that Governor Blagojevich had
sufficient authority to bind the state to an oral employment
contract with her.
No. 04-2283 29
However, even if Governor Blagojevich had possessed the
authority to bind the State to an employment contract with
Ms. Kiddy-Brown, his alleged oral statements were not
sufficiently clear and definite to constitute an offer of
employment. Under Illinois law, employment contracts are
presumed to be terminable at will by either party. See Taylor
v. Canteen Corp., 69 F.3d 773, 782 (7th Cir. 1995) (applying
Illinois law); see also Duldulao v. St. Mary of Nazareth Hosp.
Ctr., 505 N.E.2d 314, 317 (Ill. 1987). An employee bears the
burden of overcoming the presumption of “at will” employ-
ment by showing that the parties contracted otherwise. See
Taylor, 69 F.3d at 782; Duldulao, 505 N.E.2d at 318. This court
has recognized that, under Illinois law, “oral employment
contracts . . . are viewed with more skepticism than their
formal, written counterparts.” Tolmie v. United Parcel Serv., 930
F.2d 579, 581 (7th Cir. 1991). When an “alleged contract is
based upon oral assurances, the plaintiff must establish that
the offer was ‘clear and definite’ and supported by adequate
consideration.” Taylor, 69 F.3d at 782 (quoting Kercher v.
Forms Corp. of America, Inc., 630 N.E.2d 978, 981 (Ill. App. Ct.
1994)). Under Illinois law, an offer is clear and definite as
long as “an employee would reasonably believe that an offer
has been made.” Duldulao, 505 N.E.2d at 318. The test is an
objective one. See Tolmie, 930 F.2d at 581.
In defining what constitutes a clear and definite offer,
Illinois courts have held that, when employers tell employ-
ees that they will “always have a job” or that they will “never
have to anticipate a layoff” or that they were being offered
a “permanent position,” such statements are not sufficiently
clear and definite to constitute an offer of permanent em-
ployment. Wilder v. Butler Mfg. Co., 533 N.E.2d 1129, 1130-31
(Ill. App. Ct. 1989). Rather, such statements simply are
“optimistic expressions about the future” and “informal ex-
pressions of goodwill and hope that naturally occur” between
30 No. 04-2283
employer and employee. Id. at 1131. As a result, Illinois
courts have found such statements “insufficient to establish
an oral contract for permanent employment.” Id.; see also
Titchener v. Avery Coonley Sch., 350 N.E.2d 502, 506-07 (Ill.
App. Ct. 1976).
Even taking as true all the well-pleaded factual allegations
in Ms. Kiddy-Brown’s first amended complaint, we must
conclude that she has not alleged facts that constitute a due
process violation because the statements which Governor
Blagojevich is alleged to have made are not sufficiently clear
and definite to establish a property interest in continued
employment. As the State defendants point out, several of
the cases cited by Ms. Kiddy-Brown simply are not applica-
14
ble to this case.
Still other cases cited by Ms. Kiddy-Brown involved
factual circumstances that are different in important ways
from the facts of this case. For instance, in Johnson v. George
J. Ball, Inc., 617 N.E.2d 1355 (Ill. App. Ct. 1993), the Illinois
Appellate Court found that the plaintiff had been offered
employment for a term, rather than “at will.” In that case,
the defendant’s oral statements, made in 1988 before the
plaintiff was hired, included expressions that the position
would entail developing and conducting training programs
and that the programs were planned to last until 1991. See
14
Some of the cases cited by Ms. Kiddy-Brown do not concern the
question of whether an offer was sufficiently clear and definite to
support an oral contract for permanent employment. For
instance, in Berutti v. Dierks Foods, Inc., 496 N.E.2d 350, 351
(Ill. App. Ct. 1986), the court addressed the proper method for
ascertaining the terms of a contract when an oral agreement and
a later writing conflict. Another cited case, Grauer v. Valve &
Primer Corp., 361 N.E.2d 863, 865 (Ill. App. Ct. 1977), concerns a
writing and does not address alleged oral contracts.
No. 04-2283 31
id. at 1359. In Johnson, the defendant’s alleged oral statements
also encompassed a proposed salary and bonus system. See
id. In Taylor, 69 F.3d 773, this court held that alleged oral
representations were sufficiently clear and definite to estab-
lish an oral contract. In Taylor, the defendant had made oral
statements to the plaintiff offering him increased pay and
benefits in conjunction with a promotion. See id. at 782. In
the context of negotiations about the position, the defendant
had told the plaintiff that he had “ ‘nothing to worry about.’ ”
Id. In the context of further negotiations, the defendant told
the plaintiff that he could occupy the new position “for ‘as
long as [he] wished’ and [that] he would have the job ‘until
he retired or decided he did not want the job anymore.’ ” Id.
at 783. In the present case, the alleged statements were far
more vague.
Furthermore, even given that the comments made in Johnson
or Taylor could give rise to an employee’s reasonable belief
that an offer of permanent employment was being made,
that does not affect whether a person employed “at will” by
the State, as was Ms. Kiddy-Brown, reasonably would have
believed that Governor Blagojevich’s alleged comments
constituted an offer to transform the employment relation-
ship to a permanent one. In Duldulao, 505 N.E.2d 314, an
amendment to an earlier employee handbook, provided to
all employees, suggested that employees who had previously
been employed at will were being extended the additional
protection of being terminable only for cause. The
Supreme Court of Illinois held that a written employee hand-
book, promulgated by an employer and outlining “Personnel
Policies” and the “rights and duties” of employees, id. at 316,
can transform an at-will employment relationship to a
permanent one and can create “enforceable contractual rights
if the traditional requirements for contract formation are
present,” id. at 318. The Illinois Supreme Court recognized
32 No. 04-2283
three requirements for “an employee handbook or other
policy statement” to create “enforceable contractual rights”:
First, the language of the policy statement must contain
a promise clear enough that an employee would rea-
sonably believe that an offer has been made. Second, the
statement must be disseminated to the employee in such
a manner that the employee is aware of its contents and
reasonably believes it to be an offer. Third, the em-
ployee must accept the offer by commencing or continu-
ing to work after learning of the policy statement.
Id.
Although the Duldulao case made reference to “policy
statements” and did not impose a requirement that the
statements be in writing, it is not clear whether the term
“policy statement” refers only to a written statement of an
employer’s policies. Id. at 316 (referring to “policy statement”
15
as “amend[ing]” an earlier volume of a written handbook).
15
Some Illinois courts have recognized that Duldulao v. St. Mary
of Nazareth Hospital Center, 505 N.E.2d 314, 318 (Ill. 1987), is not
applicable to a case involving an “alleged oral contract for per-
manent employment.” Kercher v. Forms Corp. of America, Inc., 630
N.E.2d 978, 982 (Ill. App. Ct. 1994). But cf. Evans v. Gurnee Inns,
Inc., 645 N.E.2d 556, 559 (Ill. App. Ct. 1994) (“As the plaintiff
correctly argues, the court in Duldulao did not require that an
employee ‘policy statement’ be in writing to overcome the at-will
presumption. We know of no case setting out such a substantive
requirement.”); Hany v. Gen. Elec. Co., 581 N.E.2d 1213, 1218
(Ill. App. Ct. 1991) (“Thus, if a Duldulao contract was created, it
was only by the oral tradition that spread the essence of [em-
ployer’s policy] to the employees and by the 1981 . . . memo that
merely referred employees to [the policy].”).
No. 04-2283 33
Even if Duldulao applies to this case, we think that the
offer made in this case was not sufficiently clear and defi-
nite that an employee reasonably would have believed that
an offer of permanent employment had been made. The
amendments made in writing in Duldulao provided that an
employee could be terminated at will during a ninety-day
“probationary period” after hiring, but that, after the
expiration of the probationary period, employees became
“permanent” and could only be terminated with “proper
notice and investigation.” Id. at 316. The Supreme Court of
Illinois held that such expressions were “clear enough that
an employee would reasonably believe that an offer has
been made.” Id. at 318.
The statements in this case, on the other hand, contained
no such concrete references to employee status as permanent
and referred to no procedures for termination. Ms. Kiddy-
Brown merely alleges that Governor Blagojevich made a
“promise[ ] that[,] if men and women working for the State
of Illinois were satisfactorily performing necessary jobs, they
would not be terminated by his administration.” R.6 at 11,
¶ 78. Such words are hardly clear and definite enough to
support a reasonable belief that permanent employment has
been offered. We think that such an understanding on Ms.
Kiddy-Brown’s part simply would not have been reason-
able.
Under the circumstances of this case, Ms. Kiddy-Brown
has alleged facts which clearly are nothing more than “op-
timistic expressions about the future.” Wilder, 533 N.E.2d at
1131. At most, the alleged statements constituted “expres-
sions of goodwill and hope,” id., between a newly elected
governor who was a member of the Democratic party and
state employees who had begun their employment under a
Republican gubernatorial administration. A reasonable
employee would not have believed that an offer of perma-
34 No. 04-2283
nent employment was being made to her based on the
comments alleged by Ms. Kiddy-Brown.
Because Ms. Kiddy-Brown has failed to allege facts that,
if true, would demonstrate a due process violation, our qua-
lified immunity inquiry ends here. “If no constitutional right
would have been violated were the allegations established,
there is no necessity for further inquiries concerning quali-
fied immunity.” Saucier v. Katz, 533 U.S. 194, 201 (2001).
Thus, we need not address the second part of the test for
qualified immunity. We reverse the judgment of the district
court with respect to Count III of Ms. Kiddy-Brown’s
amended complaint. The State defendants are entitled to
qualified immunity on this count.
Conclusion
For the reasons set forth in this opinion, the judgment of
the district court is affirmed in part and reversed in part,
and the case is remanded for proceedings consistent with
this opinion. The parties shall bear their own costs on this
appeal.
AFFIRMED in part, REVERSED and REMANDED in part
No. 04-2283 35
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—5-13-05