Steven Cromwell v. City of Momence

In the

United States Court of Appeals
For the Seventh Circuit

No. 12-1541

S TEVEN C ROMWELL,
Plaintiff-Appellant,
v.

C ITY OF M OMENCE, et al.,
Defendants-Appellees.

Appeal from the United States District Court
for the Central District of Illinois.
No. 10-2221—Harold A. Baker, Judge.

A RGUED S EPTEMBER 21, 2012—D ECIDED A PRIL 12, 2013

Before P OSNER, K ANNE, and S YKES, Circuit Judges.
S YKES, Circuit Judge. Steven Cromwell was fired from
his position as a police lieutenant for the City of
Momence, Illinois, after an incident of alleged miscon-
duct. Cromwell sued the City and various city officials,
arguing that his termination was procedurally inade-
quate under the Due Process Clause of the Fourteenth
Amendment. As a necessary predicate to that claim,
he contends that he had a constitutionally protected
2 No. 12-1541

property interest in his continued public employment
derived from the City of Momence Police Department
Rules and Regulations. The regulations provide that
probationary employees may be terminated at any time
for any reason but omit similar language with regard
to nonprobationary employees. This omission, Cromwell
argues, vests nonprobationary employees like himself
with a contractual right to continued employment in
the absence of cause for termination. The district court
rejected this argument and granted the defendants’
motion to dismiss.
We affirm. The regulations on which Cromwell bases
his claim do not contain the clear language needed to
overcome Illinois’s presumption of at-will employment.
Something more than inference from silence is re-
quired. Because the regulations do not create a con-
tractual right to continued employment in the absence
of cause for termination, Cromwell lacked a protected
property interest in his job and the Due Process Clause
was not implicated by his termination.

I. Background
Cromwell, a lieutenant in the Momence Police Depart-
ment, was involved in an incident of alcohol-related
misconduct in April 2010. The Chief of Police conducted
an investigation, during which Cromwell is alleged to
have lied to his superiors and engaged in insubordina-
tion. Several months later Cromwell received a letter
from the City Council explaining that charges against
No. 12-1541 3

him had been filed with the Police Committee and that
a recommendation had been made to terminate him.
The letter stated that Cromwell was welcome (but not
required) to attend a hearing regarding the charges
against him, that his presence would assist the Police
Committee, and that if he chose to attend, he would
have an opportunity to address the charges. Cromwell
and his attorney went to the hearing, but the Committee
was meeting in executive session and they were denied
entry. After the session ended, the City Council met as
a whole and voted to terminate Cromwell’s employment.
Cromwell brought this suit under 42 U.S.C. § 1983
against the City, its Mayor, and several of its City
Council members alleging, as relevant to this appeal, that
his termination violated his due-process rights. He
argues that the Momence Police Department Rules and
Regulations, adopted by City Ordinance Number 328,
gave him a constitutionally protected property interest
in continued public employment. These regulations
provide, in relevant part:
3. PERSONNEL MATTERS:
B. All persons hired by the City Council as a police
officer of the City of Momence shall be on probation
for a period of twelve (12) to eighteen (18) months. . . .
The officer may at any time during said period be
fired for any reason by the City Council and said
fact shall further be communicated to the officer at
the time of his or her hiring.
....
4 No. 12-1541

18. DEPARTMENT DISCIPLINE:
A. Any officer who violates any laws of the United
States of America, the State of Illinois, local ordinances,
any of these rules or regulations, or written or verbal
orders of the Chief of Police or who is incompetent
to perform his duties is subject to discipline. Disciplin-
ary actions may be instituted by either the Chief
of Police or by the Police Committee. . . .
B. The Police Committee may also institute dis-
cipline proceedings by notifying any officer in
writing of any charges it wishes to bring against him
or her. . . . In the event that the Police Committee
determines that the violation by the officer war-
rants his or her firing, it shall so recommend to the
City Council and the City Council shall have the
final authority, after reviewing all evidence con-
sidered by the Police Committee, to terminate any
such officer upon the recommendation of the
Police Committee.
The district court held that these regulatory provisions
did not give rise to a property interest in continued public
employment and accordingly granted the defendants’
motion to dismiss for failure to state a claim. Cromwell
moved for reconsideration. The district court denied the
motion, and this appeal followed.

II. Discussion
We review the dismissal of Cromwell’s claim de novo.
Phelan v. City of Chicago, 347 F.3d 679, 681 (7th Cir. 2003).
No. 12-1541 5

The right to due process cannot be implicated unless
Cromwell was deprived of a constitutionally protected
property interest. He claims that he had a property
interest in continued employment as a police officer for
the City of Momence. Because property interests are
created by state law, we examine Cromwell’s claim
with reference to the law of the state where he was em-
ployed, here Illinois. See Bishop v. Wood, 426 U.S. 341, 344
(1976); Bd. of Regents of State Colls. v. Roth, 408 U.S. 564,
577 (1972).
In Illinois “a person has a property interest in his job
only where he has a legitimate expectation of continued
employment based on a legitimate claim of entitlement.”
Moss v. Martin, 473 F.3d 694, 700 (7th Cir. 2007) (citing
Krecek v. Bd. of Police Comm’rs of La Grange Park, 646
N.E.2d 1314, 1318 (Ill. App. Ct. 1995)). Because employ-
ment relationships in Illinois are presumed to be at
will, Duldulao v. Saint Mary of Nazareth Hosp. Ctr., 505
N.E.2d 314, 317 (Ill. 1987), establishing an expectation
of continued employment requires a clear statement
made in some “substantive state-law predicate,”
Omosegbon v. Wells, 335 F.3d 668, 674 (7th Cir. 2003).
Cromwell bases his claim to a protected property
interest on the Momence Police Department Rules and
Regulations. Both parties analogize the regulations to
an employee handbook or other policy statement, which
counts as a state-law predicate. Promises made in an
employee handbook can in certain circumstances “give
rise to a legitimate claim of entitlement sufficient to
be protected as a property interest.” Border v. City of
6 No. 12-1541

Crystal Lake, 75 F.3d 270, 273 (7th Cir. 1996). A promise
will create an enforceable right, however, only “if the
traditional requirements for contract formation are pres-
ent,” the first of which is that the promise must be
“clear enough that an employee would reasonably
believe that an offer has been made.” Duldulao, 505 N.E.2d
at 318. The promise cannot be a “mere procedural guaran-
tee[];” rather, “substantive criteria limiting the state’s
discretion” is required in order for a property interest
to be created. Cain v. Larson, 879 F.2d 1424, 1426 (7th
Cir. 1989). Generally, the terms of employment must
provide that termination will only be “for cause” or
“otherwise evince mutually explicit understandings of
continued employment.” Omosegbon, 335 F.3d at 674
(internal quotation marks and citations omitted); see
also Garrido v. Cook Cnty. Sheriff’s Merit Bd., 811 N.E.2d
312, 319 (Ill. App. Ct. 2004) (noting that “a public em-
ployee who could only be terminated for cause” has
“a property interest in her continued employment”).
Nothing in the Momence regulations creates a clear
promise of continued employment in the absence of
cause for termination. Cromwell relies on section 3B,
quoted above, which describes the probationary status
of new employees and explains that they may be fired
at any time and for any reason. He contrasts this with
section 18A, also quoted in pertinent part above; that
section provides that any officer who violates state or
federal law, any city rules or regulations, or any order
of the police chief may be disciplined, and lays out the
procedures by which discipline may be implemented.
Cromwell reads these two provisions to imply that all
No. 12-1541 7

nonprobationary officers have tenure and thus may be
terminated only for cause. This is too much of a stretch.
The mere presence of a probationary period does not
by implication create an enforceable property right to
continued employment for nonprobationary employees.
Cf. Campbell v. City of Champaign, 940 F.2d 1111, 1113
(7th Cir. 1991) (refusing to infer contractual obligations
from silence). An affirmative, clear promise is required.
See Border, 75 F.3d at 274 (finding language in hand-
book stating that employees are subject to reprimand,
suspension, and dismissal “at any time, as may be ap-
propriate, for conduct or performance” to be too “weak”
to overcome at-will presumption).
We have previously read contrasting employment-
m anual provisions regarding probationary and
nonprobationary employees to create tenure rights, but
only when coupled with other language independently
suggesting an expectation of continued employment.
See Robinson v. Ada S. McKinley Cmty. Servs., Inc., 19 F.3d
359, 361 (7th Cir. 1994). In Robinson an employment
manual and a letter to the employee used clear language
to indicate that after successfully completing the proba-
tionary period, the employee would achieve “per-
manent employment status” and “tenure.” Id. The
Illinois Supreme Court reached the same result in
Mitchell v. Jewell Food Stores, 568 N.E.2d 827 (Ill. 1990),
where an employment manual specifically reserved
the employer’s power to discharge probationary em-
ployees “for any reason at the sole discretion of the em-
ployer,” id. at 835, but also specified that nonproba-
tionary employees “shall not be suspended, discharged
8 No. 12-1541

or otherwise disciplined without just cause,” id. at 831.
The regulations here do not contain similar language.
The presence in section 18A of a few explicit grounds
for discipline does not change our conclusion. First, the
listed grounds are extremely broad, leaving the City
with an abundance of discretion. More importantly,
section 18, entitled “Department Discipline,” enumerates
grounds for discipline, but does not purport to list all
permissible grounds for termination. Even when enumer-
ated grounds relate to termination specifically, we have
held that the absence of a catch-all provision (“for no
ground at all”) preserving the employer’s discretion
does not imply that an employee may be terminated
only “for cause.” Campbell, 940 F.2d at 1112; see also
Border, 75 F.3d at 276 (“[W]ithout any contractual
language or implied promise limiting the employer’s
power to fire,” specific listed reasons for discipline func-
tion as “gratuitous warnings” rather than examples of
“a more general just cause concept.”). That is even
more true in this case: Section 18, unlike section 3B,
deals with discipline up to and including dismissal
rather than dismissal alone.1 Consequently, a catch-all pro-
vision would be nonsensical. No officer would be sub-
ject to “discipline” for reasons unrelated to cause—due
to budget cuts, for example, or departmental reorgani-
zation. See B LACK’S L AW D ICTIONARY 531 (9th ed. 2009)

1
Dismissal is mentioned only in section 18B as one potential
type of discipline in response to an employee’s violation of
the rules.
No. 12-1541 9

(defining “discipline” as “[p]unishment intended to
correct or instruct; esp., a sanction or penalty imposed
after an official finding of misconduct”). But the regula-
tions do nothing to foreclose the possibility that the
City can terminate an employee for legitimate noncause
reasons that would not subject an officer to discipline.
Cromwell also notes that the regulations do not
contain any disclaimer to negate rights purportedly
created by the manual. See Duldulao, 505 N.E.2d at 319
(noting in support of its finding of an enforceable right
that “the handbook contains no disclaimers to negate
the promises made”). But no disclaimer is needed where
no promises were made. See Campbell, 940 F.2d at 1113
(rejecting the argument that “if a handbook doesn’t
expressly disclaim contractual obligation[,] it creates
such an obligation,” and noting that “[s]uch a disclaimer
might be prudent[,] but it is not a sine qua non for
avoiding liability”). The regulations make no clear prom-
ises; thus, there was no reason for the City to include
a disclaimer.
Finally, the most natural reading of section 18 suggests
that it was meant not to confer rights on employees but
to lay out the powers of particular municipal authorities
(the Police Committee, the Chief of Police, and the
City Council) to impose discipline and describe the pro-
cedural processes to be followed. Even if the regula-
tions created a contractual entitlement to certain dis-
ciplinary procedures for nonprobationary as opposed
to probationary employees, they did not create a constitu-
tionally protected property right to those procedures,
10 No. 12-1541

much less to the underlying employment. Contract
rights and contractually created property rights are
different. Id. (“Not every contract right is property.”). A
contractual right to certain procedures before
being disciplined does not equate to a contractually
created property right in employment itself, or even
in the enumerated disciplinary procedures. Id.; Cain,
879 F.2d at 1426 (“If a statute or regulation merely
delimits what procedures must be followed before an
employee is fired, then it does not contain the requisite
substantive predicate.”). The procedures listed in
section 18 and in the letter Cromwell received from
the City Council do not establish a substantive entitle-
ment to continuing public employment.
Something stronger than inference from silence is
required to overcome Illinois’s common-law presump-
tion of at-will employment. In the absence of a clear
promise in the regulations creating a substantive entitle-
ment, Cromwell does not have a constitutionally pro-
tected property interest in his job with the Police De-
partment.
A FFIRMED.

4-12-13