language utilized in Doe but, instead, is a concrete policy
established by the Village guaranteeing its law enforcement
officers certain procedures during any disciplinary action.
Therefore, Nickum has sufficiently stated a claim for breach of
The Court adopts the R & R's recommendation that the
Village's Motion to Dismiss Count I of the Complaint be denied.
B. Property Interest
Nickum claims that even though not all contract rights in
employment rise to the level of property rights, the language
of the Manual also created a property right in her position.
See Campbell v. City of Champaign, 940 F.2d 1111, 1113 (7th
Cir. 1991). Counts III and V of the Complaint allege an
unconstitutional deprivation, of that property right by the
Village, (Complaint, ¶¶ 37-41), and by Stauffer. Id., at ¶¶
47-55. Nickum alleges that she was fired in violation of the
provisions set out in the Manual, which listed the causes for
which she could be disciplined. She further alleges that the
procedures set out in the Manual were also violated when the
Village dismissed her. Id. at ¶ 28. Lastly, she alleges that
Stauffer acted for personal reasons outside the scope of his
duties as mayor by unlawfully depriving her of her
constitutionally protected property interest. By presenting a
charge to the Village Board which he knew had no basis in fact,
Nickum alleges Stauffer caused her dismissal solely for
personal reasons. Id. at ¶¶ 51-52, 54.
Nickum alleges that her property rights in her job as Police
Chief, as established through the language of the Manual, were
violated for lack of due process by the Village and by
Stauffer. Id. at ¶¶ 37-41, 47-55. She argues that the Village
and Stauffer dismissed her for reasons not included in the
Manual and absent any opportunity to respond to the charge. Id.
at ¶¶ 28, 29.
The R & R concluded that the Manual sufficiently set forth a
constitutionally protected property right. (R & R at 9).
Because the Manual required at least some cause during the
dismissal of an officer, the R & R recommended that the Motion
to Dismiss Counts III and V be denied. Id.
The Village and Stauffer object to the R & R on the grounds
that the vagueness and generality of the language in the Manual
does not give rise to any effective limitations on the
Village's discretion and therefore cannot establish in Nickum
any property rights or job entitlement. (Village's Objection to
R & R at 3). The Village and Stauffer further note that the
Municipal Code of the Illinois Statutes provides that the mayor
may remove any appointed officer "on any written charge
whenever the mayor . . . is of the opinion that the interests
of the municipality demand removal." Id. at 4, citing 65 ILCS
5/3.1-35-10. Lastly, the Village and Stauffer argue that the
lack of a disclaimer is not dispositive on the issue of
property rights arising out of the Manual. Id. at 5.
Not all contractual rights in employment rise to the level of
property rights. See Campbell, 940 F.2d at 1113. A contract
which merely creates a right to specified procedures does not
create an entitlement upon which a claim of deprivation of
property without due process of law can be founded. Id. To
claim constitutionally cognizable property interests in
employment, a plaintiff must have a legitimate claim to that
interest, not merely a unilateral expectation of it. Board of
Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33
L.Ed.2d 548 (1972).
There are no property interests in procedures themselves.
Fleury v. Clayton, 847 F.2d 1229, 1231 (7th Cir. 1988). A
protected property interest in employment can arise from
statutes, regulations, ordinances, or contracts. Domiano v.
Village of River Grove, 904 F.2d 1142, 1147 (7th Cir. 1990). To
establish a constitutionally protected property interest, a
statute or ordinance must go beyond mere procedural guarantees
to provide some substantive criteria limiting the state's
discretion. Cain v. Larson, 879 F.2d 1424, 1426 (7th Cir.
Taking the facts alleged, Nickum cannot establish a property
right in her job based exclusively on the procedures for
disciplining an officer laid out in the Manual. (Complaint at
Ex. 2, ¶ 708). Nickum alleges that when the Village failed to
follow those procedures, it violated her due process rights.
(Complaint ¶ 41). As stated in Campbell, the right to specific
disciplinary procedures does not entitle someone to a
property right. Campbell, 940 F.2d at 1113. In Campbell, the
Seventh Circuit ruled that an employee handbook which states a
policy of progressive discipline does not, as a matter of
constitutionally protected property, entitle an employee
reading that handbook to the job itself. Id. The Seventh
Circuit has similarly held that a statute describing
interrogation procedures for police officers which were not
followed in the process of dismissing an officer did not
entitle that officer to that particular job as a matter of
constitutionally protected property rights. Cain, 879 F.2d at
1427. Therefore, Nickum cannot claim that she had a protected
property right in her job premised solely on the procedures
laid out in ¶ 708 of the Manual.
The same can also be said about the absence of disclaimer
language in the Manual. In Campbell, the Seventh Circuit
reasoned that the absence of a disclaimer following a
description of causes for dismissal did not create a
contractual obligation between the employee and the employer
which limited any disciplinary action by that employer.
Campbell, 940 F.2d at 1113. Since the absence of a disclaimer
cannot give rise to a contractual right, it also cannot be held
that such an absence can give rise to a substantive
entitlement. Thus, the lack of a disclaimer does not establish
a property right in Nickum's job.
However, Nickum still has made sufficient allegations in her
Complaint to establish a substantive property right based on
the Manual. Paragraph 706 of the Manual states:
Any officer . . . who violates any provision of the
rules and regulations or provisions of the Village
regarding law enforcement personnel . . . or who is
guilty of un-officer like conduct, or who is
incompetent to perform is [sic] duties is subject
to appropriate disciplinary [action].
Manual, ¶ 706 (emphasis added).
This language (with special emphasis on the italicized words)
places a substantive limitation on the Village's discretion in
that it defines the type of cause for which a Village officer
is subject to discipline. By using such language, the Village
has created an entitlement to an officer's position unless that
officer commits one of the general or specific indiscretions
listed in ¶ 706. A similar conclusion was reached in Fleury, in
which the Seventh Circuit found that an Illinois state statute
listing grounds for which a medical license "may" be revoked
created a property interest in a "blemishfree" license to
practice medicine. Fleury, 847 F.2d at 1232. Therefore, for
purposes of this Motion, her property right to bring this claim
has been established.
The Village and Stauffer's reliance on 65 ILCS § 5/3.1-35-10
of the Municipal Code of the Illinois Statutes (which Stauffer
cited as his authority when he dismissed Nickum), ignores the
fact that ¶ 706 of the Manual, and not § 5/3.1-35-10, should
have governed Nickum's dismissal. Ordinances adopted by
Illinois municipalities supersede less stringent or conflicting
state statutes unless the area regulated is of overriding state
concern. Kalodimos v. Village of Morton Grove, 103 Ill.2d 483,
83 Ill.Dec. 308, 317, 470 N.E.2d 266, 275 (1984). Whether a
particular issue is of predominantly state or local concern is
determined with regard to the nature and severity of the
problem, the units of government which have the most vital
interest in its resolution, and the role traditionally played
by the local and statewide authorities in dealing with it. Id.
Nickum's dismissal was a matter for the Village and not the
state of Illinois. It was the more specific language of the
Manual, and not § 5/3.1-35-10 of the Municipal Code of the
Illinois Statutes, which should have dictated the "why" and
"how" when Nickum was dismissed. As stated above, she was
dismissed with apparent disregard of the language in ¶ 706 of
The Court adopts the R & R's recommendation and denies the
Village's and Stauffer's Motions to Dismiss Counts III and V of
the Complaint for the reasons set forth above.
C. Liberty Interest
Nickum alleges in Counts IV and VI of the Complaint an
unconstitutional deprivation of liberty interest by the
Village, (Complaint, ¶¶ 42-46), and by Stauffer, Id. at ¶¶
56-62, based on the manner in which she was dismissed. Nickum
alleges in her Complaint that at town meetings in May 1996,
members of the Village community came forward and voiced their
complaints about her and the Village Police Department.
Id. at ¶¶ 48, 65. In light of these meetings, Stauffer
published a charge gainst Nickum and presented it to the
Village Board on May 14, 1996. Id. at ¶ 44.*fn2 On May 20,
1996, the Village Board voted to uphold Stauffer's charge to
dismiss Nickum according to the Municipal Code of the Illinois
Statutes, 65 ILCS § 3.1-35-10. Id. at ¶ 24. Her dismissal took
effect on May 31, 1996 at 11:59 p.m. Id. at ¶ 45.
The Village argues that Nickum has not been deprived of any
liberty interest because her opportunities in the
field of police work were not foreclosed by the Village's
actions. (Village's Memo. in Support of the Motion to Dismiss
at 4). The Village suggests that any foreclosure of opportunity
would not be in an occupation or calling but, rather, in the
position of Police Chief. Id. Thus, Nickum's liberty interest
was not infringed upon under the Fourteenth Amendment. Id.
The R & R concluded that the charge signed by Stauffer and
ratified by the Village Board only amounted to a charge of
incompetence and thus did not intrude on Nickum's liberty
interest. (R & R at 10). The R & R further stated that if the
discharge made Nickum unable to pursue other employment, that
inability was not due to an unconstitutionally imposed stigma.
Id. The R & R therefore recommended that Counts IV and VI of
the Complaint concerning Nickum's liberty interest be dismissed
without prejudice. Id.
Damage to a person's reputation — professional or personal
— does not, without more, implicate a Fourteenth Amendment
liberty interest. Paul v. Davis, 424 U.S. 693, 702, 96 S.Ct.
1155, 1161, 47 L.Ed.2d 405 (1976). A direct charge of
incompetence is not enough to implicate a liberty interest.
Lashbrook v. Oerkfitz, 65 F.3d 1339, 1349 (7th Cir. 1995).
"[M]inor diminutions" in opportunities are also not sufficient
to require due process. Jungels v. Pierce, 825 F.2d 1127, 1131
(7th Cir. 1987). Rather, damage to reputation in the employment
context rises to the level of a constitutional deprivation of
liberty interest only where:
(1) the individual's good name, reputation, honor,
or integrity are at stake by such charges as
immorality, dishonesty, alcoholism, disloyalty,
Communism or subversive acts; or (2) the state
imposes a stigma or other disability on the
individual which forecloses other opportunities.
Munson v. Friske,