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Darnell E. Cole v. Milwaukee Area Technical College District

February 24, 2011


Appeal from the United States District Court for the Eastern District of Wisconsin. No. 09-C-0278-Patricia J. Gorence, Magistrate Judge.

The opinion of the court was delivered by: " Mccuskey, District Judge.


Before FLAUM and WOOD, Circuit Judges, and MCCUSKEY, District Judge.

In February 2009, Plaintiff Darnell E. Cole was terminated from his employment as president of the Milwaukee Area Technical College.

"The Honorable Michael P. McCuskey, United States District Court for the Central District of Illinois, sitting by designation.

Plaintiff filed a complaint against Defendants, Milwaukee Area Technical College District (College) and Milwaukee Area Technical College District Board (Board) pursuant to 42 U.S.C. § 1983. He later filed an Amended Complaint, also pursuant to § 1983, and alleged that Defendants terminated his employment in violation of his due process rights and in violation of his right to equal protection. The parties consented to proceeding before United States Magistrate Judge Patricia J. Gorence.

The district court granted Defendants' motion to dismiss Plaintiff's due process claim but denied the motion to dismiss Plaintiff's equal protection claim. The parties stipulated to the dismissal, with prejudice, of Plaintiff's equal protection claim. Plaintiff then filed a timely notice of appeal, challenging the district court's dismissal of his due process claim. We affirm.


The College is a technical college organized and existing under Wisconsin law. It is controlled by the Board. In 2001, the Board hired Plaintiff as the College's Director, a position more commonly known as the College's president. On October 4, 2006, Plaintiff entered into a new employment agreement for the term of July 1, 2006 to June 30, 2009. The employment agreement was amended on July 3, 2008 to extend the term of Plaintiff's employment to June 30, 2011. Plaintiff attached a copy of the employment agreement to his Amended Complaint.

Plaintiff's employment agreement included paragraph 10 which was entitled "Termination of Agreement." Para- graph 10(a) provided, in pertinent part, that Plaintiff's employment could be terminated, "in the BOARD'S sole discretion," at the end of any month in which he engaged in "[p]erformance or conduct considered grounds for dismissal by the BOARD." Paragraph 10(e) provided that the Board "may, at its option, and with a minimum of ninety (90) days notice to [Plaintiff], unilaterally terminate this Agreement." Paragraph 10(e) provided that, if the Board unilaterally terminated the Agreement under this paragraph, it would pay Plaintiff severance pay consisting of "all of the aggregate salary and accrued vacation he would have earned through the total term of the Employment Agreement as well as pay fringe benefits . . . ."

On February 9, 2009, Plaintiff was arrested by the Milwaukee County Sheriff's Department and issued municipal ordinance violations for Operating While Intoxicated and Operating with a Prohibited Alcohol Concentration. After the College learned of Plaintiff's arrest, Plaintiff was interviewed as part of the College's internal investigation of the incident. The interview was conducted by outside counsel for the College. At the interview, Plaintiff was informed that counsel was a "fact finder" for the College regarding the incident.

Plaintiff was told that the Board would meet on February 19, 2009, to consider what, if any, discipline would be taken against him regarding his arrest and the events of February 8-9, 2009. At the closed hearing on February 19, 2009, the Board heard a report by outside counsel regarding his interview with Plaintiff. In addi- tion, although Plaintiff had not been notified that other matters would be considered, the Board heard allegations that Plaintiff had attempted to delay publication of an editorial in the College's student newspaper. After a closed session, the Board voted 6-3 in favor of terminating Plaintiff's employment agreement effective February 28, 2009.


We review de novo the district court's grant of Defendants' Rule 12(b)(6) motion to dismiss Plaintiff's due process claim. Justice v. Town of Cicero, 577 F.3d 768, 771 (7th Cir. 2009). In doing so, we construe the Amended Complaint in the light most favorable to Plaintiff, accepting as true all well-pleaded facts and drawing all possible inferences in his favor. Id. at 771. We will affirm the district court if the complaint fails to include sufficient facts "to state a claim for relief that is plausible on its face." Id. at 771, quoting Ashcroft v. Iqbal, ___ U.S. ___, 129 S. Ct. 1937, 1949 (2009). The consideration of a Rule 12(b)(6) motion is restricted to the pleadings, ...

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