The opinion of the court was delivered by: John W. Darrah, District Judge
MEMORANDUM OPINION AND ORDER
Plaintiff, Lori Bogacz ("Bogacz"), filed suit seeking injunctive and monetary relief against Defendant, Board of Education, Calumet Public School District 132 ("the Board"), alleging a violation of her due process rights and breach of contract. Presently before the Court is Defendant's Motion to Dismiss Complaint and Request for Temporary Restraining Order.
A reading of Bogacz's complaint supports the following summary of the alleged conduct of the parties.
On August 8, 2002, the parties executed a Principal's Contract wherein Bogacz would act as a principal in and for the Calumet Public School District ("the District") for the period of August 4, 2002 to June 30, 2003. Pursuant to the contract, Bogacz became the principal of Burr Oak Academy. Bogacz fully performed her contractual duties as principal of Burr Oak Academy.
On March 28, 2003, the parties executed another Principal's Contract. At the March 20, 2003 meeting, four of the seven board members were present. As to Bogacz's contract, two board members voted "yea" to approve it; and two board members abstained from voting. The contract states that Bogacz will act as a Principal in and for the District for the period of August 4, [ Page 2]
2003 to June 30, 2005. At the time the contract was executed, it was expressly understood and agreed to that Bogacz would continue to act as principal of Burr Oak Academy.
Following a school board election of April 1, 2003, the composition of the Board changed. At its May 15, 2003 meeting, the Board voted to "reassign" Bogacz from her position of principal of Burr Oak Academy to the position of Assistant Principal of the Calumet School for a one-year term, Bogacz was not given notice of the Board's intent to reassign her position.
On June 13, 2003, Bogacz, by her counsel, demanded assurance from the Board of its intent to honor its contractual obligations to her as set forth in the contract. On June 20, 2003, the Board informed Bogacz that it had no intention of employing Bogacz as a principal for the 2003-2004 school year.
Pursuant to the Federal Rules of Civil Procedure 12(b)(1), a case must be dismissed if the court does not have the statutory authority to hear and decide the dispute. Dismissal is required if there is no federal question involved, if the parties are not completely diverse, or if the amount in controversy is not more than $75,000, When considering a motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1), a court may look beyond the jurisdictional allegations of the complaint and view any submitted evidence on the issue to decide whether subject matter jurisdiction exists. United Transp. Unions Gateway Western Railway Co., 78 F.3d 1208, 1210 (7th Cir, 1996).*fn1 The party asserting subject matter jurisdiction has the burden of proof on a Rule 12(b)(1) issue. United Phosphorus, Ltd, v. Angus Chemical Co., 322 F.3d 942, 946 (7th Cir. 2003). [ Page 3]
Bogacz alleges subject matter jurisdiction based on her procedural due process claim pursuant to her contract with the Board.
In order to state a claim for a procedural due process violation that is based upon a deprivation of a property interest, the plaintiff must allege that (1) she has a protected [property] interest, (2) (that she was deprived of that protected property interest without due process of law, and (3) that the deprivation of that interest was caused by state officials acting under the color of law. Alexander v. Bd. of Educ. of Indian Prairie Sch. Dist. No. 204, 1998 WL 699020 *3 (N.D. Ill.) (Alexander).
A public employee whose term of employment is established by a contract has a protectable property interest in the performance of that contract according to its terms. Head v. Chicago Sch. Reform Bd. of Trustees, 225 F.3d 794 (7th Cir. 2000) (Head). A plaintiff asserting a procedural due process claim must have a legitimate claim of entitlement to continued employment in order to establish a property interest in continued employment. Kiser v. Naperville Community Unit, 227 F. Supp.2d 95 4, 968 (N.D. Ill. 2002). If an employment contract is deemed to be void under Illinois law, then the contract has not created any property interest to which the protections of the 14th Amendment would otherwise attach. Grassinni, 279 Ill. App.3d at 621. Failing to adhere to such a void employment contract does not deprive the employee of a property interest in the contract in violation of her due process rights. Grassinni, 279 Ill, App.3d at 621. Accordingly, in order to show that Bogacz's position as a principal of a school, created by an employment contract, is a protected property interest, the employment contract must be valid and legally binding upon the parties. See Alexander, 1998 WL 699020 at *3. [ Page 4]
The Board alleges that the procedural due process claim fails because Bogacz did not have a valid contract since the Board did not "legally" approve it at the March 20, 2003 meeting. At the March 20, 2003 meeting, four of the seven board members were present. As to Bogacz's contract, two board IT embers voted "yea" to approve it; and two board members abstained from voting. A majority of present board members' votes is needed to approve a contract.
Defendant contends that Bogacz's contract was never approved by the Board because the affirmative vote of the majority was required, and the two "yea" ...