In the
United States Court of Appeals
For the Seventh Circuit
No. 10-1332
D ARNELL E. C OLE,
Plaintiff-Appellant,
v.
M ILWAUKEE A REA T ECHNICAL C OLLEGE
D ISTRICT, et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 09-C-0278—Patricia J. Gorence, Magistrate Judge.
A RGUED D ECEMBER 8, 2010—D ECIDED F EBRUARY 24, 2011
Before F LAUM and W OOD , Circuit Judges, and
M C C USKEY, District Judge.
M C C USKEY, District Judge. In February 2009, Plaintiff
Darnell E. Cole was terminated from his employment as
president of the Milwaukee Area Technical College.
The Honorable Michael P. McCuskey, United States District
Court for the Central District of Illinois, sitting by designation.
2 No. 10-1332
Plaintiff filed a complaint against Defendants, Milwau-
kee Area Technical College District (College) and Mil-
waukee Area Technical College District Board (Board)
pursuant to 42 U.S.C. § 1983. He later filed an Amended
Complaint, also pursuant to § 1983, and alleged that
Defendants terminated his employment in violation of
his due process rights and in violation of his right to
equal protection. The parties consented to proceeding
before United States Magistrate Judge Patricia J. Gorence.
The district court granted Defendants’ motion to dis-
miss Plaintiff’s due process claim but denied the motion
to dismiss Plaintiff’s equal protection claim. The parties
stipulated to the dismissal, with prejudice, of Plaintiff’s
equal protection claim. Plaintiff then filed a timely
notice of appeal, challenging the district court’s dis-
missal of his due process claim. We affirm.
FACTS
The College is a technical college organized and
existing under Wisconsin law. It is controlled by the
Board. In 2001, the Board hired Plaintiff as the College’s
Director, a position more commonly known as the Col-
lege’s president. On October 4, 2006, Plaintiff entered
into a new employment agreement for the term of July 1,
2006 to June 30, 2009. The employment agreement was
amended on July 3, 2008 to extend the term of Plaintiff’s
employment to June 30, 2011. Plaintiff attached a copy
of the employment agreement to his Amended Complaint.
Plaintiff’s employment agreement included paragraph 10
which was entitled “Termination of Agreement.” Para-
No. 10-1332 3
graph 10(a) provided, in pertinent part, that Plaintiff’s
employment could be terminated, “in the BOARD’S
sole discretion,” at the end of any month in which he
engaged in “[p]erformance or conduct considered
grounds for dismissal by the BOARD.” Paragraph 10(e)
provided that the Board “may, at its option, and with
a minimum of ninety (90) days notice to [Plaintiff], unilat-
erally terminate this Agreement.” Paragraph 10(e) pro-
vided that, if the Board unilaterally terminated the Agree-
ment under this paragraph, it would pay Plaintiff sever-
ance pay consisting of “all of the aggregate salary
and accrued vacation he would have earned through
the total term of the Employment Agreement as well as
pay fringe benefits . . . .”
On February 9, 2009, Plaintiff was arrested by the
Milwaukee County Sheriff’s Department and issued
municipal ordinance violations for Operating While
Intoxicated and Operating with a Prohibited Alcohol
Concentration. After the College learned of Plaintiff’s
arrest, Plaintiff was interviewed as part of the College’s
internal investigation of the incident. The interview was
conducted by outside counsel for the College. At the
interview, Plaintiff was informed that counsel was a
“fact finder” for the College regarding the incident.
Plaintiff was told that the Board would meet on
February 19, 2009, to consider what, if any, discipline
would be taken against him regarding his arrest and
the events of February 8-9, 2009. At the closed hearing
on February 19, 2009, the Board heard a report by outside
counsel regarding his interview with Plaintiff. In addi-
4 No. 10-1332
tion, although Plaintiff had not been notified that other
matters would be considered, the Board heard allega-
tions that Plaintiff had attempted to delay publication
of an editorial in the College’s student newspaper.
After a closed session, the Board voted 6-3 in favor of
terminating Plaintiff’s employment agreement effective
February 28, 2009.
ANALYSIS
We review de novo the district court’s grant of Defen-
dants’ Rule 12(b)(6) motion to dismiss Plaintiff’s due
process claim. Justice v. Town of Cicero, 577 F.3d 768, 771
(7th Cir. 2009). In doing so, we construe the Amended
Complaint in the light most favorable to Plaintiff,
accepting as true all well-pleaded facts and drawing all
possible inferences in his favor. Id. at 771. We will
affirm the district court if the complaint fails to include
sufficient facts “to state a claim for relief that is
plausible on its face.” Id. at 771, quoting Ashcroft v. Iqbal,
___ U.S. ___, 129 S. Ct. 1937, 1949 (2009). The considera-
tion of a Rule 12(b)(6) motion is restricted to the
pleadings, which consist here of the complaint, any
exhibits attached thereto, and the supporting briefs.
Thompson v. Ill. Dep’t of Prof’l Regulation, 300 F.3d 750, 753
(7th Cir. 2002).
Plaintiff has argued on appeal that the district court
improperly dismissed his procedural and substantive
due process claims. This court notes that Plaintiff’s
Amended Complaint alleged a violation of his due
process rights and did not include a specific substantive
No. 10-1332 5
due process claim. Plaintiff’s due process claim was
based upon his allegation that his employment agree-
ment “created a constitutional property right in his con-
tinued employment as President.” In his Brief, Plaintiff
acknowledged that his “due process claims arise out of
his property right in continued employment” at the
College. Therefore, it is clear that Plaintiff’s procedural
and substantive due process claims are contingent upon
his contention that he had a protectable property inter-
est in continued employment.
As the district court correctly recognized, in any due
process case where the deprivation of property is alleged,
the threshold question is whether a protected property
interest actually exists. Buttitta v. City of Chicago, 9
F.3d 1198, 1201 (7th Cir. 1993); see also Khan v. Bland, ___
F.3d ___, 2010 WL 5185838, at *15 (7th Cir. Dec. 23, 2010).
To have a protectable property interest in a benefit, such
as continued employment, a plaintiff must have more
than an “abstract need or desire for it” and more than a
“unilateral expectation of it.” Bd. of Regents v. Roth, 408
U.S. 564, 577 (1972). Instead, a plaintiff must have a
“legitimate claim of entitlement to it.” Id. at 577.
The determination whether a particular job action
against a public employee implicates a constitutionally
protected property interest is a question of law. Barrows
v. Wiley, 478 F.3d 776, 780 (7th Cir. 2007). Property
interests are not created by the Constitution but rather
“they are created and their dimensions are defined by
existing rules or understandings that stem from an in-
dependent source such as state law.” Roth, 408 U.S. at 577.
6 No. 10-1332
In the employment context, a plaintiff generally is
required to show that the terms of his employment pro-
vide for termination only “for cause” or otherwise evince
“mutually explicit understandings” of continued employ-
ment. Omosegbon v. Wells, 335 F.3d 668, 674 (7th Cir. 2003),
quoting Perry v. Sindermann, 408 U.S. 593, 601 (1972); see
also Colburn v. Trs. of Ind. Univ., 973 F.2d 581, 589 (7th Cir.
1992). A property interest in employment is “created
and defined by the terms of [the employee’s] appoint-
ment.” Roth, 408 U.S. at 578. “Property interests exist
when an employer’s discretion is clearly limited so that
the employee cannot be denied employment unless
specific conditions are met.” Colburn, 973 F.2d at 589-90.
Under Wisconsin law, “a dichotomy exists between
employment ‘at-will’ and employment which can be
terminated only ‘for cause.’ ” Beischel v. Stone Bank School
Dist., 362 F.3d 430, 436 (7th Cir. 2004). Employment which
can be terminated only “for cause” receives due process
protections. Id. at 436. In Beischel, the plaintiff sued
after her two-year contract was not renewed. In chal-
lenging the non-renewal, the plaintiff relied upon a
provision in her contract which stated that the contract
was governed by Wisconsin statutes which set out proce-
dures to be followed for renewal and non-renewal. Id.
at 435-46. This court concluded the plaintiff’s employ-
ment contract did not provide she could be terminated
only “for cause” and therefore fell in the “gray area”
between “the two poles set up in Wisconsin law.”
Id. at 436. This court noted that there were “no
statutory limitations as to the bases on which the
nonrenewal decision can rest.” Id. at 436. This court
No. 10-1332 7
therefore determined the plaintiff “did not have a legiti-
mate expectation that her employment would continue
beyond the 2-year term of her contract.” Id. at 436. Ac-
cordingly, we held that the plaintiff could not recover
based upon the denial of her right to due process. Id. at 436.
In Fittshur v. Vill. of Menomonee Falls, 31 F.3d 1401 (7th
Cir. 1994), the plaintiff claimed he was denied due
process when his employment was terminated after
more than 20 years of employment with the Village. In
claiming a property interest in his continued employ-
ment, the plaintiff relied on a rule which provided that
the Village manager had the authority to discharge
an employee of the Village “when necessary for the
good of the Village service.” Id. at 1405. The plain-
tiff claimed this language gave rise to something more
than at-will employment which meant he had a property
interest in his employment. Id. at 1406. This court dis-
agreed. We held that this rule did not create a pro-
tectable property interest in the plaintiff’s employment
with the Village because the rule did “not restrict the
village manager’s discretion in any meaningful way.” Id.
at 1406. In Fittshur, we stated that the language of the
rule rendered “any interest in employment with the
Village at best uncertain” and did “not create a property
interest.” Id. at 1406-07.
From our review of the record, we hold that the clear,
unambiguous language of Plaintiff’s employment agree-
ment gave the Board discretion to terminate his employ-
ment based on any “conduct” the Board considered
grounds for dismissal. The parties’ agreement did not
8 No. 10-1332
restrict the Board’s discretion in any meaningful way.
Accordingly, we agree with Defendants that Plaintiff’s
employment agreement placed Plaintiff squarely in the
“gray area” between at-will employment and employ-
ment which could only be terminated for cause.
Employees in this “gray area” do not normally have a
protectable property interest in continued employment.
See Beischel, 362 F.3d at 436; Fittshur, 31 F.3d at 1405-07.
The burden is on the plaintiff to point to the criteria
that might cabin the Board’s discretion. Here, Plaintiff
has not carried that burden; the discretionary standard
in Plaintiff’s employment agreement cannot be read to
give Plaintiff a “legitimate claim of entitlement” to con-
tinued employment under Roth.
In his appeal, Plaintiff pointed out that his employ-
ment agreement gave the Board unfettered discretion to
terminate his employment unilaterally for no reason in
paragraph 10(e), which required the Board to pay
Plaintiff salary and benefits for the time remaining
under the terms of the agreement. Plaintiff argued that
paragraph 10(b) cannot be read to allow the Board unfet-
tered discretion to terminate his employment unilaterally
for no reason because the court must “giv[e] a rea-
sonable meaning to every provision of the contract” and
avoid “leaving some of the language useless or superflu-
ous.” See Foskett v. Great Wolf Resorts, Inc., 518 F.3d 518,
525 (7th Cir. 2008), quoting Kennedy v. Nat’l Juvenile Det.
Ass’n, 187 F.3d 690, 694 (7th Cir. 1999). Plaintiff argues
that any interpretation of paragraph 10(b) as authorizing
the termination of his employment at will renders para-
graph 10(e) superfluous. Plaintiff claims that paragraph
No. 10-1332 9
10(b) must therefore be construed to provide that his
employment could be terminated only based upon perfor-
mance or conduct which constituted just cause for his
dismissal. We disagree.
Plaintiff is not correct that paragraph 10(e) makes
paragraph 10(b) superfluous unless it is read to provide
that Plaintiff could only be terminated based upon just
cause. Plaintiff’s termination under paragraph 10(b) was
based upon “conduct” which the Board, in its sole dis-
cretion, determined was grounds for dismissal. It was
not a unilateral termination, with no reason needed,
under paragraph 10(e).
Plaintiff has not alleged a situation where the Board
was using paragraph 10(b) to effectuate an “end run”
around paragraph 10(e) and avoid the paragraph 10(e)
requirement to pay compensation for the remainder of
the term of the agreement. Plaintiff plainly alleged that
he was arrested and issued municipal ordinance cita-
tions for operating while intoxicated and operating with
a prohibited alcohol concentration and was subse-
quently terminated. The Board, in its sole discretion,
determined that Plaintiff’s “conduct” was grounds for
dismissal and terminated his employment. This was
clearly allowed under the plain and unambiguous terms
of the agreement Plaintiff agreed to and signed. The
agreement, as written, simply does not create a “legiti-
mate claim of entitlement” to continued employment,
despite Plaintiff’s lengthy and strident arguments to
the contrary.
We conclude, as a matter of law, that Plaintiff did not
have a constitutionally protected property interest in this
10 No. 10-1332
case. Accordingly, we affirm the dismissal of his due
process claim. Because of our holding on this issue,
we need not consider Plaintiff’s additional arguments
regarding the denial of his due process rights.
For the reasons stated, the ruling of the district court
is A FFIRMED.
2-24-11