Appeal from the United States District Court for the Central District of Illinois. No. 80-3254 -- J. Waldo Ackerman, Judge.
Cummings, Chief Judge, Pell and Posner, Circuit Judges.
Vincent Turnquist appeals from the district court's order granting the appellees' motion for summary judgment. He contends that the court erroneously concluded that he had no property interest under Illinois law in being paid the prevailing rate of wages for his class of employment. He further contends that, contrary to the court's holding, he was not accorded due process by the state agency that ruled upon his claim of entitlement to payment of the prevailing rate.
Western Illinois University employed Vincent Turnquist as a mail messenger from October 25, 1971, through January 20, 1981. The University Civil Service System Act, Ill. Rev. Stat. ch. 24 1/2, § 38b1-38v (1981), governs the employment of all nonacademic employees of Western Illinois University, including that of the appellant. Under section 38b3(3), the University Civil Service Merit Board (the Board) "shall direct the payment of 'the prevailing rate of wages' in those classifications in which, on January 1, 1952, any employer is paying such prevailing rate and in such other classes as the Merit Board may thereafter determine."
Beginning in July 1974, Turnquist sought to establish that he was entitled to be paid at the same rate as city carriers of the United States Postal Service. On March 11, 1975, the Civil Service Employment Policies Committee of Western Illinois University denied his request that mail messengers be paid the same rate as city carriers. Turnquist appealed this ruling to Walter Ingerski, the director of the University Civil Service System.
In letters to Turnquist dated May 14 and May 26, 1975, Ingerski denied his appeal, stating that there were substantial differences between the duties of mail messengers and city carriers, which justified the difference in pay rates. On June 6, 1975, Turnquist appealed this ruling to the Merit Board, which considered his appeal on August 19, 1975. The appellant was not present at the meeting and was not notified in advance that the meeting was to take place. Ingerski, who was not a member of the Board, appeared at the meeting and outlined the differences between the jobs of mail messengers and city carriers. The Board notified Turnquist of its decision to affirm Ingerski's ruling in a letter dated August 21, 1975.
On February 18, 1976, the appellant requested that the Board reconsider its action; the Board denied the request on February 26. On August 19, 1980, Turnquist filed a complaint under 42 U.S.C. § 1983, asserting that the Board had denied him his procedural due process rights by not granting him a proper hearing on his claim that he was entitled to be paid the prevailing rate of wages.
On August 28, 1981, the appellees filed a motion for summary judgment. United States Magistrate Charles H. Evans filed recommendations in which he concluded that Turnquist did have a protected property interest but said that the Board provided him with sufficient due process. On April 23, 1982, the district court adopted the Magistrate's recommendation that the appellees' motion for summary judgment be granted, but held that Turnquist had no property interest. This appeal was filed on May 17, 1982.
II. THE INTEREST INVOLVED
Determining whether there has been an unlawful deprivation of a constitutionally protected property interest is a two-part inquiry. First, the court must establish whether there is a property interest. "To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it." Board of Regents v. Roth, 408 U.S. 564, 577, 33 L. Ed. 2d 548, 92 S. Ct. 2701 (1972). A property interest can be created expressly or may arise through implication from a state agency's words, actions, rules, or "mutually explicit understandings." Perry v. Sindermann, 408 U.S. 593, 601, 33 L. Ed. 2d 570, 92 S. Ct. 2694 (1972). Second, if there is such an interest, the court must determine whether the person deprived was accorded due process.
The district court held that Ill. Rev. Stat. ch. 24 1/2, § 38b3(3) (1981), on which Turnquist relies in claiming an entitlement, did not confer a property interest in being paid the prevailing rate of wages. The court cited the statute's provision that the Board "shall direct the payment of 'the prevailing rate of wages' in those classifications in which, on January 1, 1952, any employer is paying such prevailing rate and in such other classes as the Merit Board may thereafter determine" (emphasis added).*fn1 The court interpreted this language to mean that the Board has discretion to determine which classifications are to be paid the prevailing rate of wages after January 1, 1952.
The appellant first objects to the district court's holding that the statute gives the Board discretion to determine which classifications are to be paid the prevailing rate. He says that the court cited no case authority or ...