In the
United States Court of Appeals
For the Seventh Circuit
No. 10-2680
S AMONE R EDD ,
Plaintiff-Appellant,
v.
R OSEMARIE N OLAN, et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 1:08-cv-00343—Morton Denlow, Magistrate Judge.
A RGUED S EPTEMBER 7, 2011—D ECIDED N OVEMBER 29, 2011
Before P OSNER, F LAUM, and H AMILTON, Circuit Judges.
H AMILTON, Circuit Judge. Samone Redd’s probationary
employment with the Cook County Department of Cor-
rections ended with her resignation on October 31, 2007.
Redd had been a witness in a criminal investigation
conducted by Detective John Dougherty of the City of
Chicago Police Department. She has sued Dougherty,
alleging that when she refused to lie to further the ends
of that investigation, he tortiously interfered with her
2 No. 10-2680
County employment. She has also sued the County
Sheriff and Sheriff’s Department Director of Personnel
Rosemarie Nolan (collectively, the “County”), claiming
First Amendment retaliation, retaliatory discharge, and
a violation of her procedural due process rights.1 Her
claims against Detective Dougherty were dismissed
under Federal Rule of Civil Procedure 12(b)(6) for
failure to state a claim in a ruling by Judge Ruben
Castillo.2 The claims that survived dismissal moved
forward before Magistrate Judge Morton Denlow pursu-
ant to the parties’ consent. Judge Denlow granted the
County’s motion for summary judgment on all of Redd’s
remaining claims. Redd appeals both of these rulings.
We affirm.
1
Redd brought her retaliatory discharge claim only against
the Sheriff, as her employer.
2
Judge Castillo also dismissed all of Redd’s claims against
“unknown defendants,” as well as a substantive due process
claim against Director Nolan, claims of unspecified violations
of her “First, Fourth, Sixth and/or Fourteenth Amendment”
rights against Detective Dougherty and Assistant State’s
Attorney Adam Weber, and a claim of intentional infliction
of emotional distress against all defendants. Redd does not
appeal these rulings. She also does not appeal Judge Castillo’s
dismissal of her retaliatory discharge claim as to Director
Nolan or her claim of intentional interference with a business
relationship as to ASA Weber.
No. 10-2680 3
I. Intentional Interference with a Business Relationship
The district court dismissed the claim against Detective
Dougherty for intentional interference with a business
relationship. We review the dismissal under Rule 12(b)(6)
de novo, accepting well-pled facts as true and drawing
any reasonable inferences in Redd’s favor. See Reynolds
v. CB Sports Bar, Inc., 623 F.3d 1143, 1146 (7th Cir. 2010).
Additional background facts became available when
the case progressed to summary judgment, but like the
district court, we limit our review to the factual allega-
tions Redd included in her first complaint.3
Redd began training to be a Cook County correctional
officer on November 13, 2006, receiving her final evalua-
tion from the Sheriff’s Institute for Law Enforcement
Education and Training on February 2, 2007. She then
began work as a correctional officer for the Cook County
Department of Corrections. All correctional officers
must satisfy a one-year probationary period; Redd’s
probation was to end on November 13, 2007.
On May 29, 2007, Redd saw a man and a woman
arguing outside of a Chicago residence. About two days
later, she was contacted by Detective Dougherty, who
asked her to give a statement about what she had seen on
May 29th. She told him at that time that she had not
3
Over the course of this litigation, Redd filed three com-
plaints. Her tortious interference with a business relationship
claim was dismissed based on the allegations in the first of
her complaints, filed January 15, 2008, so that is the one
we consider on appeal.
4 No. 10-2680
witnessed a battery, but she did not sign an official state-
ment. Redd alleges that Detective Dougherty, ap-
parently not satisfied with that statement, repeatedly
called her, attempting to intimidate and harass her.
On July 5, 2007, Dougherty called Redd at 3:00 a.m.,
demanding that she immediately give a statement in
person. Although Redd refused, Dougherty insisted
that she give a statement and cooperate. Hours later
Dougherty arrived at Redd’s door with a subpoena
to appear and testify before a grand jury on July 6 and
July 9, 2007.
On July 6th, Redd was on her night-shift lunch break at
1:45 a.m. when she received a call from Detective
Dougherty advising her that he and Assistant State’s
Attorney Weber were coming to the jail to obtain her
statement. When they arrived, however, DOC External
Operations Officers refused to let them enter the jail to
see Redd.
At 9:00 a.m. on July 6th, Redd appeared for the
grand jury proceedings pursuant to her subpoena.
ASA Weber tried to get Redd to change her statement
by intimidation and coercion, she alleges, falsely
accusing her of making inconsistent statements. Redd
refused to lie and did not testify before the grand jury.
This scene was repeated on July 9th, except that
Detective Dougherty was also present when ASA
Weber attempted to bully Redd into changing her state-
ment.
ASA Weber later filed a complaint against Redd with
the County Sheriff’s Department accusing her of failing
No. 10-2680 5
“to cooperate in an ongoing criminal investigation” and
of “providing the State’s Attorney’s Office with false
statements.” Redd alleged in conclusory terms that De-
tective Dougherty conspired with ASA Weber to
interfere with her employment relationship. As a result
of ASA Weber’s accusations, Redd alleges, Sheriff’s
Department Director of Personnel Rosemarie Nolan
“terminated and/or constructively discharged” Redd from
her job as a DOC correctional officer on October 31, 2007.4
Detective Dougherty moved to dismiss Redd’s claim
of tortious interference with a business relationship
under Rule 12(b)(6) for failure to state a claim. To defeat
Detective Dougherty’s motion, Redd had to do more
than allege the elements of her claim. Her complaint
“must actually suggest that [she] has a right to relief, by
providing allegations that raise a right to relief above
the speculative level.” Windy City Metal Fabricators &
Supply, Inc. v. CIT Tech. Fin. Servs., 536 F.3d 663, 668
(7th Cir. 2008) (emphasis in original), quoting Tamayo v.
Blagojevich, 526 F.3d 1074, 1084 (7th Cir. 2008). Her com-
plaint was required to provide at least “enough fact to
raise a reasonable expectation that discovery will reveal
evidence” supporting her allegations. Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 556 (2007). But this requirement
4
For the sake of clarity, we note again that Redd initially
brought claims of tortious interference with a business rela-
tionship under Illinois law against both Weber and
Dougherty. The court dismissed Redd’s claim against Weber
on sovereign immunity grounds. Redd has not appealed
that decision.
6 No. 10-2680
does not mean that the plaintiff was required to show
that she would probably prevail. A well-pleaded com-
plaint “may proceed even if it strikes a savvy judge
that actual proof of those facts is improbable, and that
a recovery is very remote and unlikely.” Id. (internal
quotation omitted).
To establish the tort of intentional interference with a
business relationship under Illinois law, a plaintiff must
show (1) a reasonable expectation of continued employ-
ment; (2) knowledge of the business relationship by the
defendant; (3) intentional interference; and (4) damages.
See Callis, Papa, Jackstadt & Halloran, P.C. v. Norfolk and
Western Ry. Co, 748 N.E.2d 153, 161 (Ill. 2001); Labate v.
Data Forms, Inc., 682 N.E.2d 91, 94 (Ill. App. 1997).
The district court found that Redd’s claim against
Dougherty failed on the third element because Redd
alleged that ASA Weber, and not Detective Dougherty,
filed the complaint against her with the Sheriff’s Depart-
ment, and because nothing else in Redd’s allegations
suggested that Detective Dougherty was involved with
or participated in ASA Weber’s complaint. We agree
with this reasoning.
Redd’s allegations certainly suggest that Detective
Dougherty did his best to pressure Redd into telling
him what he and ASA Weber wanted to hear. But Redd
also alleged that ASA Weber, and only ASA Weber,
raised a complaint with her employer. Redd has failed to
allege a viable claim against Detective Dougherty under
the post-Twombly standards of Rule 8. She attempts to
draw Detective Dougherty into the mix by claiming that
No. 10-2680 7
he and ASA Weber “individually and/or in a conspiracy,
intentionally interfered with [Redd’s employment] by
inducing the Cook County Department of Corrections
to discharge Plaintiff,” but her attempt falls short. Her
assertion of a conspiracy is an unsupported legal conclu-
sion that we are not bound to accept as true. See, e.g.,
Kolbe & Kolbe Health & Welfare Benefit Plan v. Medical
College of Wisconsin, Inc., 657 F.3d 496, 502 (7th Cir.
2011). The complaint includes not a whiff of a conspirato-
rial agreement or any improper complicity between
Weber and Dougherty to support the conclusory allega-
tion. Taking Redd’s allegations as a whole, we cannot
reasonably infer that Detective Dougherty was involved
in ASA Weber’s complaint or that he otherwise inten-
tionally interfered with Redd’s employment. We there-
fore affirm the district court’s dismissal of the claim
against Detective Dougherty.
II. Retaliation Claims
The County sought summary judgment on Redd’s
claims of First Amendment retaliation and state law
retaliatory discharge. The Magistrate Judge granted the
County’s motion on these two claims, and Redd appeals.
We review the court’s grant of summary judgment de
novo, and we view the designated evidence and draw
all reasonable inferences therefrom in the light rea-
sonably most favorable to Redd as the non-moving
party. See Poer v. Astrue, 606 F.3d 433, 438-39 (7th Cir.
2010). Summary judgment is appropriate only when
8 No. 10-2680
the pleadings, discovery materials, disclosures, and
affidavits demonstrate that there is no genuine issue as
to any material fact and that the moving parties are
entitled to judgment as a matter of law. Fed. R. Civ.
P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23
(1986).
The specifics of ASA Weber’s complaint and the
County’s ensuing investigation were not part of Redd’s
complaint allegations and thus could not be considered
by the court in deciding Dougherty’s and the City’s
motion to dismiss, but these additional facts could and
did come into play with the County’s summary judg-
ment motion. On May 29, 2007, Redd attended a
barbeque at which she witnessed a verbal altercation
between her friend Tammie Watkins and Raphael Taylor.
Watkins later accused Taylor of striking her in the face
with a beer bottle. Chicago Police sought corroboration
of Watkins’ story from Redd, whom they considered a
“circumstantial witness” to the crime.
Chicago Police Detective Brian Johnson investigated
the Watkins battery alongside Detective Dougherty.
Detective Johnson testified that on June 7, 2007, Redd
told him that she had met with Taylor after the
incident, and that Taylor told Redd that he was sorry
and he “didn’t mean to do that to Tammie.” Redd
did not see or sign the report that Johnson created mem-
orializing her supposed statement. Detectives Johnson
and Dougherty began looking for Taylor, and Redd
rode along with them to help find him, giving Johnson
and Dougherty possible addresses and a license num-
No. 10-2680 9
ber to assist them. Detective Johnson testified that up
to that point, Redd was cooperative.
But after Taylor was arrested on July 4, 2007, Detec-
tive Johnson believed that Redd became difficult and
stopped cooperating. First, she refused to go to the police
station to view a line-up. Then, on July 5th, Detective
Johnson and Assistant State’s Attorney Kevin Nolan
attempted to speak with Redd at the Cook County Jail
during her shift, but they were not allowed to enter.
(Redd’s supervisor later explained that External Opera-
tions and the Administrative Duty Officer determine
who is and who is not allowed to enter the jail, and that
Redd was not involved in the decision to exclude Detec-
tive Johnson and ASA Nolan.) Redd was subpoenaed
to appear before a grand jury on July 6th and 9th. On
July 6th, Redd called the phone number on the subpoena
because she was confused about the date she should
appear. She spoke to ASA Weber, who asked her when
she would like to appear. Redd stated she would come
right then because she was at work. She arrived in ASA
Weber’s office, but Weber decided against putting her
on the witness stand. Redd returned to Weber’s office
again on July 9th, but Weber again declined to call her
to testify.
The Sheriff’s Office of Professional Review received a
complaint from ASA Weber alleging that Redd had
purposely failed to cooperate in a criminal investigation
of the alleged aggravated battery committed against
Watkins. The Sheriff’s Department’s General Orders
controlled how internal investigations were handled.
10 No. 10-2680
Section (III), D, 2 of General Order 4.1 detailed the author-
ity and responsibility of the Internal Investigations Divi-
sion in handling complaints concerning correctional
department officers:
Disciplinary action in connection with “sustained”
complaints is initially recommended by the assigned
Internal Investigations Investigator. The Chief In-
vestigator will review the investigator’s findings and
recommendation(s), then submits the investigation
for Command Channel Review. Command Channel
Review consists of the Inspector General, Under-
sheriff, Executive Director, and in cases where there
is recommendation for termination, the Sheriff.
Detective Servando Velez was assigned to conduct an
administrative investigation of ASA Weber’s complaint.
He interviewed Weber, Detective Johnson, ASA Nolan,
and Redd. Redd denied that Raphael Taylor had
admitted to her that he hit Tammie Watkins. Instead,
Redd told Detective Velez that she had spoken not to
Taylor but to Taylor’s girlfriend. She also told Detective
Velez that she had been unable to come to police head-
quarters to view a line-up on July 5th because her child
had been at home asleep. When he was interviewed,
Detective Johnson told Detective Velez that Redd had
become “difficult” and did not want to cooperate in the
investigation after Taylor was arrested. She had told
Detective Johnson that she did not want to be involved,
and she refused to view a line-up because her super-
visor had told her not to become involved. When Redd
failed to meet with the police, the decision was made
No. 10-2680 11
to subpoena her to testify before the grand jury. Detec-
tive Johnson told Detective Velez that ASA Weber
decided not to call Redd to testify before the grand jury
because of her inconsistent statements.
In conducting his investigation into ASA Weber’s
complaint, Detective Velez did not request the police
detectives’ reports or progress notes as part of his in-
vestigation. He did not interview External Operations
or Redd’s supervisor at the Cook County Jail. When
asked whether he believed the information provided to
him by the police detectives, Velez responded: “I believe
a police officer is going to be truthful in his statement.”
He also stated that he “absolutely” believed the Assistant
State’s Attorneys were being truthful with him.
Detective Velez completed his investigation on
October 4, 2007, ultimately sustaining the following
charges against Redd:
(1) that she “failed to cooperate with Chicago Police
Detectives and Assistant State’s Attorneys investi-
gating an Aggravated Battery on 06 July 2007” in
violation of General Order 3.8 (III) B, 4;
(2) that she contradicted her prior statements to de-
tectives and changed the facts after three interviews
in violation of General Order 3.8 (III) B, 4;
(3) that she “provided contradictory statements to
both Detectives and ASAs assigned to investigate
an Aggravated Battery” in violation of General
Order 3.8 (III) B, 6;
12 No. 10-2680
(4) that she “refused to speak with Det. Dougherty
and ASA Nolan . . . and impeded their investigation”
in violation of General Order 3.8 (III) B, 6; and
(5) that she “reported three hours late to a Grand Jury
subpoena after being given appropriate notice
and proceeded to give conflicting statements” in
violation of General Order 3.8 (III) B, 6.
General Order 3.8 (III) B, 4 required employees to “respect
and protect the right of the public to be safeguarded
from criminal activity.” General Order 3.8 (III) B, 6 re-
quired employees to “respect the importance of agencies
within the criminal justice system and work to improve
coordination within each segment.” Based on the out-
come of Velez’s investigation, Henry Barsch, the
Assistant Executive Director of the Office of Professional
Review, recommended that Redd be terminated.
On October 31, 2007, Redd met with defendant
Rosemarie Nolan, the Director of Personnel of the
Sheriff’s Department. Nolan advised Redd of the
charges against her and the General Orders she was
found to have violated. She also told Redd that if she did
not resign, she would be discharged for misconduct.
Redd chose to resign. On November 6th, an Executive
Director of the DOC concurred with OPR’s findings and
recommendation of termination. On November 9th, an
OPR Executive Director concurred with OPR’s findings
and recommendation of termination. The Undersheriff
concurred on November 16, and on November 21st,
the Sheriff concurred with OPR’s findings and recom-
mendation of termination. Director Nolan testified that
No. 10-2680 13
she lacks the authority to disagree with or reverse a
discharge decision.
Redd contends that she was discharged in violation
of her First Amendment rights in retaliation for refusing
to commit perjury. To establish a prima facie case of
First Amendment retaliation, an employee must show
that: (1) the employee’s speech was constitutionally pro-
tected; (2) the employee has suffered a deprivation
likely to deter free speech; and (3) the employee’s speech
was a motivating factor in the employer’s decision. See
Greene v. Doruff, ___ F.3d ___, ___, 2011 WL 4839162, at *2
(7th Cir. Oct. 11, 2011), following Spiegla v. Hull, 371
F.3d 928, 941-43 (7th Cir. 2004); Valentino v. Village of
South Chicago Heights, 575 F.3d 664, 670 (7th Cir. 2009).
Redd also claims retaliatory discharge under Illinois
law, which is a narrow exception to the rule that an
employer may fire an at-will employee for any reason or
no reason. To establish a claim of retaliatory discharge,
an employee must establish that she was (1) discharged;
(2) in retaliation for her activities; and (3) the discharge
violated a clear mandate of public policy. See Blount v.
Stroud, 904 N.E.2d 1, 9 (Ill. 2009). If Redd had been dis-
charged for refusing to commit perjury, that would be
a recognized violation of public policy under Illinois law.
See id.
We consider Redd’s retaliation claims together because
each failed on summary judgment for the same reason:
Redd lacks evidence from which a reasonable jury
could infer that she was asked to resign in retaliation
for refusing to commit perjury before the grand jury.
14 No. 10-2680
Redd’s argument misses the mark. She contends that
summary judgment was not appropriate because only
a jury could determine whether the County’s stated
reason for her termination — violations of department
rules and regulations — was credible. In support of
her contention, she points only to Detective Velez’s state-
ments that, in conducting his investigation, he believed
“a police officer [would] be truthful in his statement”
and that he “absolutely” believed the Assistant State’s
Attorneys were being truthful with him. For these
reasons, Redd contends that Velez was “neglectful” of
the possibility that those officers and ASAs might lie (or
be honestly mistaken). Without significantly more
evidence to undermine the honesty of Velez’s account,
however, Redd has at most an argument that Velez
was gullible or naive. Employment actions based on
gullible or naive reasoning or otherwise bad judgment
are not illegal for that reason.
What is missing here is any evidence from which a
reasonable jury might conclude that Detective Velez’s
investigation or conclusions were in retaliation for
Redd’s asserted refusal to lie to further the prosecution
of Raphael Taylor in the Watkins battery. In other
words, even if Velez’s conclusions were wrong, that
would not support an inference that he or other DOC
officials intended to retaliate against Redd for exer-
cising her rights under the First Amendment and
Illinois law.
Even if we were to take a speculative leap and
assume that Detective Velez himself harbored a retali-
No. 10-2680 15
atory motive, Redd has another hurdle to overcome.
Detective Velez did not participate in the decision
to terminate Redd’s employment — and, other than
delivering the news, neither did Director Nolan. Henry
Barsch, the Assistant Executive Director of the Office
of Professional Review, was the one who reviewed the
results of Detective Velez’s investigation and recom-
mended that Redd be separated from her employment.
Even if Velez’s investigation could somehow be catego-
rized as retaliatory, Redd does not argue that Barsch
was Velez’s “cat’s paw,” and nothing in this record sug-
gests that any retaliatory motive trickled up to Barsch,
the decision-maker. See, e.g., Staub v. Proctor Hospital,
131 S.Ct. 1186, 1192 (2011) (under “cat’s paw” theory of
liability, employer will be liable for discrimination
where an adverse action taken by a decision-maker is
“the intended consequence” of a non-decision-maker’s
“discriminatory conduct”). In short, there is no evi-
dence that would support a reasonable finding of
illegal retaliation in this summary judgment record.
III. Procedural Due Process
Finally, we turn to Redd’s claim that the County defen-
dants violated her right to procedural due process. The
Magistrate Judge also granted the County’s motion for
summary judgment on this claim, and here again we
review the court’s grant of summary judgment de
novo, viewing all evidence and drawing all reasonable
inferences therefrom in the light reasonably most
favorable to Redd as the non-moving party. See Poer,
606 F.3d at 438-39.
16 No. 10-2680
A procedural due process violation occurs when
(1) conduct by someone acting under the color of state
law; (2) deprives the plaintiff of a protected property
interest; (3) without due process of law. See Germano
v. Winnebago County, 403 F.3d 926, 927 (7th Cir. 2005).
Whether Redd had a property interest in continued
employment depends on state law. See Board of Regents
v. Roth, 408 U.S. 564, 577 (1972); Germano, 403 F.3d at 927.
To show a legitimate expectation of continued employ-
ment under Illinois law that could support a due process
claim, Redd must point to a state law, an ordinance, a
contract, or some other understanding limiting the
Sheriff’s ability to discharge her. See Krecek v. Board of
Police Comm’rs of La Grange Park, 646 N.E.2d 1314, 1318-19
(Ill. App. 1995).
Redd was still within her probationary period when
her employment ended, so this determination seems
deceptively easy. It is well-settled that probationary
public employees do not possess a property interested in
continued employment and thus have no right to proce-
dural due process before their employment may be termi-
nated. See Williams v. Seniff, 342 F.3d 774, 787 (7th Cir.
2004) (Indiana law established a term of one year of
probation for county police officers; officer fired within
probationary period had no protected interest in con-
tinued employment); Omosegbon v. Wells, 335 F.3d 668, 674-
75 (7th Cir. 2003) (no protected interest in reappointment
to a “probationary” Indiana state university teaching
position); Trejo v. Shoben, 319 F.3d 878, 889 (7th Cir.
2003) (same, in Illinois); Common v. Williams, 859 F.2d
467, 470-71 (7th Cir. 1988) (Illinois corrections officer fired
No. 10-2680 17
within probationary period had no protected interest
in continued employment). The Illinois legislature has
even codified this principle specifically for county cor-
rections officers: “All appointees shall serve a proba-
tionary period of 12 months and during that period
may be discharged at the will of the Sheriff.” 55 ILCS § 5/3-
7008.
But the issue turns out not to be quite so simple, at
least with regard to probationary employees of the Cook
County Department of Corrections. Despite the quoted
statutory language, “a municipality can provide greater
protection for its employees if it sees fit to do so by en-
acting rules and regulations.” Lewis v. Hayes, 505 N.E.2d
408, 411 (Ill. App. 1987). For such a rule or regulation to be
effective, however, it must be a “clear policy statement.”
Faustrum v. Board of Fire and Police Comm’rs of the Village
of Wauconda, 608 N.E.2d 640, 643 (Ill. App. 1993). When
Redd finished her training and started working as a
correctional officer, she signed a document as part of
her employment paperwork. By its terms, the document
stated Redd’s “terms of employment.” By signing the
document, she confirmed that she would abide by the
DOC’s General Orders and Procedures. She also con-
firmed that she understood “that during my first year
as a Correctional Officer, I am on probation and can be
terminated for cause.” (Emphasis added.) The question
before us is whether this is a “clear policy statement”
sufficient to alter the ordinary at-will terms of Redd’s
probationary employment.
Redd argues that the “termination for cause” language
in her employment agreement meant that the DOC had
18 No. 10-2680
altered the meaning of probationary employment so
that she could be terminated only for cause, so that she
had a protected interest in continued employment with
the DOC. Redd finds support for this position in Lewis
v. Hayes, in which a panel of the Illinois Appellate
Court accepted a similar argument and held that a proba-
tionary police officer had a property interest in his job
because the local government had adopted rules saying
that a probationary employee could be terminated for
cause: “If a probationary officer could be terminated
either with cause or without, the ‘with cause’ language
would have no meaning whatsoever, and we can not
assume that the Village would draft meaningless
language and insert it into its Commission’s Rules.”
505 N.E.2d at 411.
We are not persuaded that the reasoning of Lewis is
sufficient to satisfy the later “clear policy statement”
requirement that has emerged under Illinois law as the
condition of overcoming the clear statutory language
providing that probationary employees may be fired
without cause. First, it simply is not “meaningless” to
tell an employee that she may be fired for cause or to
specify some of the particular causes, even if the
employer does not intend to limit its discretion to fire
an employee without good cause (meaning with-
out judicial review). It may be useful for both em-
ployer and employee for the employer to communicate
expectations for performance, and to remind the em-
ployee of the consequences of poor performance. The
legal nuances of providing such a warning need not be
spelled out in detail, particularly where the employ-
No. 10-2680 19
ment relationship is governed by statute, as it is here
in the case of probationary corrections employees.
Even more to the point, however, we do not see how
we could reconcile the promise that Lewis found to be
only implied (to fire only for good cause) with the re-
quirement of a clear policy statement to overcome the
statute providing for truly probationary employment. See
Krecek, 646 N.E.2d at 1319; Faustrum, 608 N.E.2d at 643
(allowing termination of probationary police officer
without notice or hearing). The clear statement require-
ment can be traced back at least to Romanik v. Board of Fire
and Police Comm’rs of East St. Louis, 338 N.E.2d 397 (Ill.
1975), in which the Illinois Supreme Court drew a sharp
line between regular police officers with for-cause pro-
tection and probationary officers who had not yet
proven their abilities on the job. There the state’s highest
court refused to read a statute requiring pre-termination
procedures as applying to probationary officers in the
absence of specific language requiring application to
them. Id. at 399. The clear statement requirement simply
is not satisfied by an inference that lawyers and judges
might draw from at best ambiguous and incomplete
language.
Accordingly, in similar cases involving state and local
government employees in Illinois, we have found that
there was no clear statement overcoming statutory pro-
visions for truly probationary employment. See, e.g.,
Border v. City of Crystal Lake, 75 F.3d 270, 275 (7th Cir. 1996)
(affirming summary judgment for employer and finding no
property interest where employer specified some grounds
20 No. 10-2680
for termination but did not clearly indicate that those
were only grounds for termination); Lashbrook v. Oerkfitz,
65 F.3d 1339, 1347-48 (7th Cir. 1995) (affirming summary
judgment for employer and finding no property interest
where contract and policies did not say that employee’s
contract could be terminated only for good cause); see
also Moss v. Martin, 473 F.3d 694, 701 (7th Cir. 2007)
(affirming summary judgment for employer; permissive
language in manual that employee “may be discharged
for cause” did not imply promise that discharge could be
only for good cause); Boulay v. Impell Corp., 939 F.2d 480,
482-83 (7th Cir. 1991) (affirming summary judgment for
employer; permissive language in employee handbook
did not guarantee either progressive discipline or “just
cause” for dismissal).
The language in the employment agreement cannot be
read in a vacuum. Properly read in context with the
statute and other DOC rules and regulations concerning
DOC employee status and discipline, the single line in
Redd’s employment agreement stating that she could
“be terminated for cause” is not a sufficiently clear state-
ment that she could be fired only for cause to give Redd
a protected property interest in her probationary em-
ployment.
The DOC General Orders and Procedures, which Redd
acknowledged were also binding on her employment,
stated: “All probationary employees (person employed
by the Department less than 12 months) may be sum-
marily terminated by the Sheriff or his designee.” DOC
General Order 3.2A. They also stated:
No. 10-2680 21
All probationary correctional officers serve a proba-
tionary period of (1) year, from the date of appoint-
ment. After successful completion of the proba-
tionary period, officers are granted full merit status. . . .
Failure to meet minimum standards of performance
may be basis for termination of a probationary em-
ployee at any time during the probationary period.
If it becomes apparent that the probationary
officer’s conduct, character or standards of perfor-
mance do not meet Sheriff’s Office standards for
satisfactory service, the probationary officer may be
removed.
DOC General Order 3.5. When the relevant documents
are read together, we find no clear statement that the
DOC intended to alter the terms of Redd’s employment
by stating in her employment agreement that she could
be terminated for cause. It is not difficult to reconcile
the General Orders and the “termination for cause”
language in Redd’s employment agreement: although
Redd certainly could have been terminated for cause,
she also could have been terminated without cause.
In either case, the Sheriff retained the right to terminate
Redd “summarily” so long as she was within her proba-
tionary period.
To support her claim to a protected property interest
in her probationary job, Redd also relies on procedural
provisions of department policies. Redd points to DOC
General Order 4.1, which described how complaints,
internal investigations, and disciplinary actions within
the department should be conducted. She contends that
22 No. 10-2680
this General Order “specifie[d]” that probationary em-
ployees accused of misconduct had the “right” to an
investigation before they were disciplined. The language
of General Order 4.1 does not support her contention.
More fundamental, even if Redd could show a promise
that certain procedures would be available to her before
termination, it is well established that such procedural
protections under state law do not provide the sub-
stantive restrictions on the employer’s discretion that
would be needed to establish a federally protected prop-
erty interest in continued employment. See, e.g., Border,
75 F.3d at 275 (presence of grievance procedures in
employee handbook did not indicate that plaintiff’s em-
ployment could be terminated only “for cause”); Campbell
v. City of Champaign, 940 F.2d 1111, 1113 (7th Cir. 1991);
Lim v. Central DuPage Hospital, 871 F.2d 644, 648 (7th Cir.
1989); Schultz v. Baumgart, 738 F.2d 231, 236 (7th Cir. 1984)
(employee’s federal due process claim did not depend
on whether local government employer complied with
every detail of state law’s procedural requirements).5
5
Several Illinois state cases seem to conclude that state law
requirements for procedural protections of employees are
sufficient to create a property interest protected by the federal
Due Process Clause. See, e.g., Krecek, 646 N.E.2d at 1319;
Faustrum, 608 N.E.2d at 641-43; Lewis, 505 N.E.2d at 411.
Such procedural requirements are often enforceable as a
matter of state law. E.g., Fernandes v. Nolen, 592 N.E.2d 1151,
1153 (Ill. App. 1992) (probationary state police officer was
entitled to pre-termination hearing where agency rules
(continued...)
No. 10-2680 23
To show a protected property interest in her proba-
tionary employment, Redd also relies on Director
Nolan’s deposition. Nolan testified that probationary
employees could be terminated only for “just cause” and
that the Sheriff could terminate a probationary
employee if there was a “reason for discharge.” Nolan’s
testimony was confused and inconsistent. She also
testified that her understanding of “fired for just cause”
meant that an employee could be discharged for any
reason at the discretion of the employer. Although we
must resolve that confusion and inconsistency in Redd’s
favor on summary judgment, it does not help her. No
matter what Nolan believed, she was not able to alter
unilaterally the terms of Redd’s employment. Thus, what
Nolan may or may not have understood in that regard
was not relevant to Redd’s actual legal status. See
Common, 859 F.2d at 471-72 (DOC executive director
lacked the authority to vary the terms of an employee’s
probationary employment).
Accordingly, we conclude that the sentence in Redd’s
employment agreement saying that she could be termi-
nated for cause was not a sufficiently “clear policy state-
ment” to override the mandate of 55 ILCS § 5/3-7008
that county correctional officers may be terminated
summarily for any reason during their probationary
5
(...continued)
required one). But the cases cited in the text (and innumerable
others that could be cited on the point) show that state proce-
dural requirements for termination do not provide a federally
protected property interest in continued employment.
24 No. 10-2680
period. Because Redd was still within her 12-month
probationary period, she had no protected interest in
continued employment at the time of her resignation.
Finally, Redd argues that Nolan “defrauded” her into
resigning on October 31st (while she was still within
her probationary period) because the Sheriff did not
actually approve her termination until November 21st.
On October 31st, Nolan told Redd that if she did not
resign she would be fired, and Redd claims that she
resigned in reliance on Nolan’s statement. She contends
that if she had waited, her termination would not have
been effective until November 21st when the Sheriff
approved her termination. However, Redd did not plead
a fraud claim. Even if she had, her argument is pure
speculation. No one knows what would have happened,
or when, if Redd had not resigned on October 31st. The
fact that the Sheriff did not formally sign off on Redd’s
termination until November 21st could not retroactively
change Redd’s status on October 31st. We affirm the
grant of summary judgment on the due process claim.
The judgment of the district court is A FFIRMED.
11-29-11