The opinion of the court was delivered by: Nordberg, District Judge:
MEMORANDUM OF DECISION AND ORDER
Plaintiff Maxine Kanter ("Kanter") brought this action for
declaratory relief and damages under 42 U.S.C. § 1983 against
defendants Community Consolidated School District and the Board
of Education of School District 65 ("Board").*fn1 Kanter also
alleged a breach of her employment contract by defendants as a
pendent claim to the constitutional count. This action is
presently before the Court on defendants motion to dismiss the
first amended complaint pursuant to Rule 12(b)(6), F.R.C.P. For
the reasons set forth below, this motion is granted.
Plaintiff Kanter is a tenured public school teacher in the
Evanston, Illinois School System. In the instant action, she
challenges the track movement merit pay increase system of the
defendants as violative of her rights under the Fourteenth
Amendment to the U.S. Constitution. She also alleges that the
superintendent of the school system refused to follow certain
committee recommendations that plaintiff be promoted on three
occasions, violating both substantive and procedural due process
guarantees under the Fourteenth Amendment as well as her
constitutional right to equal protection.
Kanter initially filed a claim on July 10, 1980 with the Equal
Employment Opportunity Commission which was denied on October 29,
1980. She then filed a pro se complaint under Title VII in the
Federal District Court which was dismissed for lack of
jurisdiction on March 10, 1981. The complaint was reinstated on
June 19, 1981 on plaintiff's motion to vacate. Kanter's request
for appointment of counsel was granted. The instant complaint,
the first amended complaint, was filed on February 24, 1982.
The guidelines to be used in considering a motion to dismiss
are clear. A complaint should not be dismissed for failure to
state a claim unless it appears beyond doubt that the plaintiff
can prove no set of facts in support of his claim that would
entitle him to the relief requested. Cruz v. Beto, 405 U.S. 319,
322, 92 S.Ct. 1079, 1081-82, 31 L.Ed.2d 263 (1972); Conley v.
Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80
(1957). As the United States Court of Appeals for the Seventh
Circuit has noted:
"Under the Federal Rules of Civil Procedure, it is
well established that, on a motion to dismiss, a
complaint must be construed in the light most
favorable to the plaintiff, the allegations thereof
being taken as true; and if it appears reasonably
conceivable that at trial the plaintiff can establish
a set of facts entitling him to some relief, the
complaint should not be dismissed." Mathers Fund,
Inc. v. Colwell, 564 F.2d 780, 783 (7th Cir. 1977).
However, the Court "will not strain to find inferences available
to plaintiff which are not apparent on face of the complaint."
Coates v. Illinois State Board of Education, 559 F.2d 445, 447
(7th Cir. 1977).
Kanter alleges a denial of her procedural due process rights in
her claims regarding the establishment of written standards
defining "meritorious achievement" and defendants' failure to
give written reasons for denial of track movement. Plaintiff,
however, has failed to allege a denial of a liberty*fn2 or property
interest protected by the Fourteenth Amendment and without
alleging such an interest, she is not entitled
to procedural due process. Board of Regents of State Colleges v.
Roth, 408 U.S. 564, 569, 92 S.Ct. 2701, 2705, 33 L.Ed.2d 548
"The Fourteenth Amendment's procedural protection of property
is a safeguard of the security of interests that a person has
already acquired in specific benefits." Roth, supra, 408 U.S. at
576, 92 S.Ct. at 2708. A person claiming such an interest must
have more than a unilateral expectation of that benefit. She must
have a legitimate claim of entitlement to it. Property interests,
themselves, are not created by the constitution, but rather from
an independent source such as state law. Roth, supra, 408 U.S. at
572, 92 S.Ct. at 2706-07.
Kanter alleges an entitlement to a merit pay increase via the
school district's track movement system. She claims that the
property interest she holds in her tenured teaching position
would be impaired if this merit pay increase is not granted.
Kanter admits that her position as a tenured teacher has not been
taken from her or directly threatened. Plaintiff's Memorandum In
Response To Defendant's Motion To Dismiss, page 7.
The Supreme Court has recognized an entitlement amounting to a
constitutionally protected property interest in a teacher's
tenured status. Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694,
33 L.Ed.2d 570 (1972). This entitlement, however, does not extend
to merit salary increases. Roth, supra 408 U.S. at 577, 92 ...