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August 25, 1982


The opinion of the court was delivered by: Nordberg, District Judge:


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 (1972).

"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 ...

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