II. Motion to Dismiss Standard
Dismissal under Federal Rule of Civil Procedure 12(b)(6) should not be granted "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claims which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957); Chaney v. Suburban Bus Div. of the Regional Transp. Auth., 52 F.3d 623, 627 (7th Cir. 1995). In resolving a motion to dismiss under Rule 12(b)(6), "we read a complaint liberally and 'accept as true the well pleaded allegations of the complaint and the inferences that may be reasonably drawn from those allegations.'" Panaras v. Liquid Carbonic Indus. Corp., 74 F.3d 786, 1996 U.S. App. LEXIS 693, *14 (7th Cir. 1996) (quoting Palda v. General Dynamics Corp., 47 F.3d 872, 874 (7th Cir. 1995)).
The defendants challenge each of the four counts of the complaint. Although the plaintiff maintains that at least portions of Counts I-III withstand these attacks, he concedes that Count IV must fail. Accordingly, as Fernandez has voluntarily dismissed this count, we decline to address its merits and instead move on to the remaining counts.
A. Eleventh Amendment
We first discuss the argument raised by the defendants that the Eleventh Amendment
bars this suit against them in federal court. It is settled law that, absent consent by the state or abrogation by Congress, the Eleventh Amendment precludes suit in federal court against a state or its departments for violations of state and federal law, regardless of the nature of the relief sought. Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 100, 106-07, 121, 79 L. Ed. 2d 67, 104 S. Ct. 900 (1984). Moreover, because an official capacity claim against a state officer is actually a claim against the state itself, see Brandon v. Holt, 469 U.S. 464, 471-73, 83 L. Ed. 2d 878, 105 S. Ct. 873 (1985), Eleventh Amendment immunity applies to official capacity claims as well, see Kentucky v. Graham, 473 U.S. 159, 167, 87 L. Ed. 2d 114, 105 S. Ct. 3099 (1985). Only when the plaintiff challenges the constitutionality of a state official's action, and seeks prospective relief in the nature of an injunction or other equitable relief, does the Eleventh Amendment restriction drop out. Graham, 473 U.S. at 167 n.14; Ex parte Young, 209 U.S. 123, 159-60, 52 L. Ed. 714, 28 S. Ct. 441 (1908).
At the time of the alleged violations the Board and GSU were agents of the State of Illinois, Davidson v. Board of Governors of State Colleges and Univs. for Western Illinois Univ., 920 F.2d 441, 442 (7th Cir. 1990); Ellis v. Board of Governors of State Colleges and Univs., 102 Ill. 2d 387, 466 N.E.2d 202, 205, 80 Ill. Dec. 750 (Ill. 1984), and Fernandez has offered nothing more than speculation to suggest that their status is otherwise under current law. Therefore, these two defendants are entitled to Eleventh Amendment immunity on Counts I and II.
In addition, the claims in Counts I and II against Wolff and Allen in their official capacities for compensatory and punitive damages are precluded by the Eleventh Amendment. See Papasan v. Allain, 478 U.S. 265, 276-77, 92 L. Ed. 2d 209, 106 S. Ct. 2932 (1986). However, to the extent Fernandez seeks injunctive and declaratory relief in Count I, his official capacity claims against Wolff and Allen are not barred by the Eleventh Amendment. Kashani v. Purdue Univ., 813 F.2d 843, 848 (7th Cir.), cert. denied, 484 U.S. 846, 98 L. Ed. 2d 97, 108 S. Ct. 141 (1987). Accordingly, we dismiss Counts I and II against the Board and GSU, and all claims for damages in Counts I and II against Wolff and Allen in their official capacities.
B. Count I
At the outset, we consider whether any of the remaining defendants in Count I are considered "persons" under 42 U.S.C. § 1983. In addition to the immunity provided by the Eleventh Amendment, the law of § 1983 also precludes official capacity claims for damages against state officials. Will v. Michigan Dep't of State Police, 491 U.S. 58, 71, 105 L. Ed. 2d 45, 109 S. Ct. 2304 (1989). However, to the extent Fernandez seeks injunctive relief from the official acts of the defendants, and damages against them individually, Wolff and Allen are considered "persons" under § 1983. Id. at 71 n.10 (official capacity claims for injunctive relief); Hafer v. Melo, 502 U.S. 21, 22, 116 L. Ed. 2d 301, 112 S. Ct. 358 (1991) (individual liability under § 1983).
We next address the defendants' other challenges to Count I: (1) that Fernandez has not demonstrated a legitimate property interest in his continued employment, (2) that his claim is actually brought in contract, and (3) that he received the option of pursuing adequate post-deprivation remedies, and therefore was not denied due process. While we express some doubts as to the plaintiff's ability to eventually prevail on Count I, we reject each of the defendants' arguments.
Although the defendants assert that property interests must arise from federal law in order to be protected by the Due Process Clause, Defs.' Mem. at 4, the law is clearly to the contrary.
Property interests, of course, are not created by the Constitution. Rather they are created and their dimensions are defined by the existing rules or understandings that stem from an independent source such as state law--rules or understandings that secure certain benefits and that support claims of entitlement to those benefits.
Board of Regents of State Colleges v. Roth, 408 U.S. 564, 577, 33 L. Ed. 2d 548, 92 S. Ct. 2701 (1972). Specifically, a person's interest in a benefit is deemed "property" under the Due Process Clause if "there are such rules or mutually explicit understandings that support his claim of entitlement to the benefit." Perry v. Sindermann, 408 U.S. 593, 601, 33 L. Ed. 2d 570, 92 S. Ct. 2694 (1972). We look to state law to ascertain whether a plaintiff has alleged a legally-protected interest in continued employment. Border v. City of Crystal Lake, 75 F.3d 270, 1996 U.S. App. LEXIS 840, *8 (7th Cir. 1996).
Fernandez first argues that the provision of the Board's organic statute that authorizes the removal of professors "for good cause," 110 ILCS 605/8(3), constitutes a sufficient rule to support his property claim. However, this provision has already been interpreted as a grant of power to the Board, not an entitlement to employees of the state universities in Illinois. Grimes v. Eastern Ill. Univ., 710 F.2d 386, 387-88 (7th Cir. 1983). The plaintiff contends that we should not follow Grimes because the plaintiff in that case was an administrative employee, whereas he was a professor. This same argument was rejected by another district court judge in Lowenstein v. Wolff, No. 93 C 5067, 1994 U.S. Dist. LEXIS 10707, 1994 WL 411389, at *3-4 (N.D. Ill. Aug. 3, 1994), and we concur with that court's conclusion that 605/8(3) does not create a protected property interest in a university professor's employment.
The plaintiff's more substantial argument is that the mandatory requirements for retention and tenure contained in the Faculty Agreement and Statement provided him with a "legitimate claim of entitlement" to continued employment. See Roth, 408 U.S. at 577.
Although it is true that a property interest in employment can be created where "an employer's discretion is clearly limited so that the employee cannot be denied employment unless specific conditions are met," it is also the case that "[a] property interest is not established by general statements in handbooks, appointment documents or elsewhere that an employee will be judged based on some 'criteria.'" Colburn v. Trustees of Indiana Univ., 973 F.2d 581, 589 (7th Cir. 1992). For example, in Colburn the employment materials did not contain any limitations on the discretion of decisionmakers to refuse to rehire the plaintiff, and the criteria for tenure were such "inherently subjective" factors as a candidate's "teaching, research, creative work and service." Id. at 590. Although there were specific requirements for dismissing a faculty member prior to the end of her contract term, no such conditions were contained in the reappointment "criteria." Id. The court concluded that because of the absence of sufficiently limiting language in the handbooks and appointment documents, professors did not have a property interest in continued tenure track employment. Id.
Although we suspect that Colburn will eventually dispose of the plaintiff's claims, we are not in a position at this juncture to dismiss Count I. Neither party has submitted a copy of the Faculty Agreement or the Statement, which Fernandez claims gave him a legitimate expectation of continued employment so long as he satisfied certain criteria. Compl. PP 8-9, 38-39. Without the language of these documents before us, we cannot ascertain whether they conferred a property interest in continued employment on Fernandez. Cf. Paige v. Harris, 584 F.2d 178, 181-83 (7th Cir. 1978) (holding that HUD handbook created contractual tenure system for attorneys). Unlike Colburn, which was an appeal from a grant of summary judgment, we can dismiss Count I only if there are no facts which could support Fernandez's claim for relief. Because we cannot conclude at this point that the plaintiff will be unable to present facts demonstrating that he possessed a legitimate property interest in tenure track retention, we must reject the defendants' first attack on Count I.
The defendants' next argument is that the plaintiff's claim in Count I, although styled in terms of a due process violation, is actually one for breach of contract. See Yatvin v. Madison Metropolitan Sch. Dist., 840 F.2d 412, 416-17 (7th Cir. 1988) (concluding that appointment to at will position did not confer property right, regardless of potential contract claim). For the reasons discussed above, we disagree. In this case, Fernandez claims that pursuant to the criteria established by the Faculty Agreement and Statement, he had a legitimate expectation of retention. Whether such an expectation was legitimate under Roth cannot be resolved without an examination of these documents. Until this language can be analyzed and compared with the documents at issue in Colburn, we are unable to conclude that the plaintiff has no property interest for purposes of the Due Process Clause.
Finally, the defendants contend that the plaintiff's claim must fail because he has failed to allege the inadequacy of the post-deprivation procedures provided by GSU. However, "the rule is that a state cannot take a person's property without giving him an opportunity for a hearing in advance of the taking, unless there is good reason--an emergency, for example, or the sheer infeasibility of a predeprivation hearing, or the demonstrable adequacy of postdeprivation process--for dispensing with the requirement of a predeprivation hearing." Penn Central Corp. v. U.S. R.R. Vest Corp., 955 F.2d 1158, 1161 (7th Cir. 1992) (emphasis in original). The defendants make no real attempt to fit within these exceptions, so we simply consider whether Fernandez has alleged inadequate predeprivation procedures. According to his complaint, Fernandez was given the opportunity to present his portfolio to the Division in order to secure rehiring on the tenure track for the 1993-94 academic year. However, he claims that before his portfolio presentation, Defendants Allen and Wolff had already decided to terminate him from GSU. A hearing that has absolutely no chance of influencing the decisionmakers, since they have already made their decision, strikes us as inadequate under the Due Process Clause. Cf. Ward v. Village of Monroeville, Ohio, 409 U.S. 57, 59-61, 34 L. Ed. 2d 267, 93 S. Ct. 80 (1972) (requiring decisionmaker to exhibit some level of impartiality). Accordingly, we deny the defendants' motion to dismiss the remaining claims in Count I.
C. Count II
In their motion, the defendants also seek dismissal of the state law claims in Count II, arguing that they "substantially predominate" over the federal claims. See 28 U.S.C. § 1367(c)(2). However, the defendants do not detail this argument by comparing Count II to the federal claims; in light of our disposition of the motion to dismiss, such a comparison has in any event changed. Accordingly, we refrain from addressing the substantial predominance issue at this time. In this particular case, the more appropriate time to consider the issue will be when the defendants file additional summary judgment motions regarding the remaining federal claims.
D. Count III
Finally, the defendants move to dismiss Count Ill and its allegations of gender and national origin discrimination in violation of Title VII. Their first attack goes to the timing of Fernandez's charge before the EEOC, which they claim was ineffective because it was filed before his termination in August 1994. As discussed in Part I, it appears that Plaintiff was notified in March 1993 that he would not receive a tenure track contract for 1993-94, but instead would be given a terminable one-year contract. He alleges that the adverse employment decision--wrongful non-retention on tenure track--occurred and was communicated to him in March 1993, and therefore his cause of action accrued at this time. Delaware State College v. Ricks, 449 U.S. 250, 258, 66 L. Ed. 2d 431, 101 S. Ct. 498 (1980). Thus his EEOC charge was timely filed on September 17, 1993.
Defendants Wolff and Allen next maintain that they cannot be held liable under Title VII because they are individuals who do not otherwise meet the statutory definition of an "employer." Williams v. Banning, 72 F.3d 552, 554-55 (7th Cir. 1995). Fernandez asserts that after the dissolution of the Board, GSU will "be on its own," and Wolff and Allen will have interests "more than that of a supervisor." Pl.'s Resp. at 5. We are unpersuaded by this argument because even after the abolition of the Board, GSU will not be "on its own," but will still act as an arm of the State of Illinois. See 110 ILCS 670/15-35. More importantly, Fernandez gives us no reason to conclude that the alteration of GSU's status somehow elevates Wolff and Allen to "employers" under Title VII. Accordingly, we grant Wolff and Allen's motion to dismiss Count III against them.
In sum, we dismiss Count I against the Board and GSU, as well as the damage claims in Count I against Wolff and Allen in their official capacities. In addition, we dismiss Count II against the Board, GSU, and Wolf and Allen in their official capacities. Finally, we dismiss Count III against Wolff and Allen, and Count IV in its entirety. The only remaining claims are (1) Count I against Wolff and Allen in their individual capacities, (2) Count I against Wolff and Allen in their official capacities to the extent Fernandez seeks injunctive and declaratory relief permitted by the Eleventh Amendment, (3) Count II against Wolff and Allen individually, and (4) Count III against GSU and the Board. The plaintiff is directed to file an amended complaint within seven days incorporating these rulings. It is so ordered.
MARVIN E. ASPEN
United States District Judge