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Zertuche v. Board of Trustees of the Village of Carrier Mills

August 17, 2007


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


Joseph Zertuche brought this action against his former employer, the Board of Trustees of the Village of Carrier Mills ("the Board"), for violation of his right to due process under the Fourteenth Amendment, 42 U.S.C. § 1983, and for breach of employment contract under Illinois common law. The Board moves for partial summary judgment on Zertuche's Count I (Due Process) and Count II (Breach of Contract), pursuant to Federal Rule of Civil Procedure 56 (Doc. 12).*fn1 For the reasons stated below, the Board's motion is granted.*fn2


Joseph Zertuche, employed by the Board from July, 2001 until July, 2004 was, at the time of his termination, the Carrier Mills Chief of Police. His employment was terminated after a party which occurred on June 12, 2004.*fn3 Zertuche planned the party and brought an eight-gallon pony keg of beer. The party was held at the rural home of Dustin Penrod, a minor. Those present who were invited to the party were Zertuche's pregnant girlfriend Megan and four friends with whom Zertuche rode motorcycles, none of whom were underage. Several uninvited people were present, some of whom who were underage. When Zertuche arrived at the party and saw that there were minors present, he announced that there would be no underage drinking. He saw no one underage drinking, but others observed two underage males drinking. During the course of the party, Zertuche's wife April, from whom he was separated, arrived at the party, argued with Zertuche and struck him. He was intoxicated at the time. April went to her relative, Carrier Mills Mayor Audie Murphy, and told him that Zertuche was having an underage drinking party. Zertuche was suspended with pay on June 13, 2004. He believes that he was suspended because his ex-wife was related to the Murphys and not because of the alleged underage drinking party. The state police investigated the incident and submitted a report to the Board that no evidence was found of underage drinking. On July 22, 2004, the Board terminated Zertuche's employment following a closed Board meeting. Complaint ¶ 6. The Board informed Zertuche that his termination resulted from violations of the Handbook, specifically, Section 5 ("Ethical Standards) and Section 37(III)(a)*fn4 (personal use of Village equipment or vehicles). Id. ¶ 7.

At some point, subsequent to Zertuche's hiring, the Board had distributed an employee handbook ("Handbook") to its employees, including Zertuche. The Handbook set out the Board's policies, a code of conduct and disciplinary guidelines. Doc. 23, Plaintiff's Exhibit 1, Village of Carrier Mills Employee Handbook. Under Section 5, "Ethical Standards," the Handbook stated, "The Village recognizes and respects the individual emloyee's [sic] right to engage in activities outside his or her employment which are private in nature and do not in any way conflict with, or reflect poorly on the Village. Management reserves the right, however, to determine when an employee's activities represent a conflict with the Village's interests and to take whatever action is necessary to resolve the situation, including terminating the employee." Handbook at 3, 4.

Under Section 37, "General Work Rules," the Handbook stated that certain listed acts would "subject an employee to suspension, without pay or to immediate discharge, dependent on the degree or circumstances involved." Handbook at 21. Among the acts listed is "Unsatisfactory performance or conduct." Id. at 22, 37(III)(n). Disciplinary action, depending on the severity of the offense, consisted of either a written reprimand, suspension for up to three days without pay, or in "extreme circumstances," discharge. Id. at 26. The Handbook stated that progressive discipline comprised three steps, written reprimand after a first offense, suspension after a second offense and possible termination after a third offense. Id. The Handbook further provided that the recognition of progressive discipline did not prohibit the Village from imposing discipline commensurate with the severity of the offense. Id. Furthermore, while the Handbook uses mandatory language in reference to disciplinary procedures, the list of reasons for discipline is not intended to be comprehensive. Id. at 22.

Zertuche understood the policies contained in the Handbook to constitute the terms and conditions of employment offered by the Board. Complaint ¶ 5. After learning of these policies, he continued to work for the Board under the terms and conditions described therein. Id.


Summary judgment is proper if the pleadings, depositions, interrogatory answers, admissions and affidavits reveal that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Vukadinovich v. Board of Sch. Trs. of N. Newton Sch. Corp., 278 F.3d 693, 698-99 (7th Cir. 2002).

The mere existence of an alleged factual dispute is not sufficient to defeat a summary judgment motion. Anderson v. Liberty Lobby, 477 U.S. 242, 247 (1986); Salvadori v. Franklin Sch. Dist.,293F.3d 989, 996 (7th Cir. 2002).Rather, to successfully oppose summary judgment, the non-movant must present definite, competent evidence in rebuttal. Vukadinovich, 278 F.3d at 699.


The Board challenges Zertuche's claims on three grounds: Zertuche had no protected interest in continuing employment; the contract or agreement on which Zertuche's claim is based violates the Statute of Frauds; and Zertuche received a due process hearing.*fn5

In analyzing any due process claim, this Court must answer two questions: "(1) whether the defendants deprived the plaintiff[] of a constitutionally protected liberty or property interest; and (2), if so, whether that deprivation occurred without due process of law." Williams v. Seniff, 342 F.3d 774, 786-87 (7th Cir. 2003).

In order to succeed on his due process claims, Zertuche must first show that he possessed a constitutionally-protected property interest in his job as chief of police. See Border v. City of Crystal Lake, 75 F.3d 270, 273 (7th Cir. 1996); Wolf v. City of Fitchburg, 870 F.2d 1327, 1330 (7th Cir. 1989).Property interests "are not created by the Constitution. Rather, they are created and their dimensions are defined by 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 v. Roth, 408 U.S. 564, 577 (1972).Such protections may arise by way of statute, regulations, municipal ordinance, or by way of an express or implied contract. Domiano v. Village of River Grove, 904 F.2d 1142, 1147 (7th Cir. 1990). A ...

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