Dunn v. Schmitz et al

Filing 29

OPINION AND ORDER: Defendants' Motion for summary Judgment (d/e 19 ) is GRANTED. The Clerk is DIRECTED to enter judgment in favor of Defendants and against Plaintiff. All remaining deadlines and settings are terminated. This case is closed. SEE WRITTEN OPINION AND ORDER. Entered by Judge Sue E. Myerscough on 3/31/2022. (ME)

E-FILED

Thursday, 31 March, 2022 04:06:15 PM
Clerk, U.S. District Court, ILCD

IN THE UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
KENNETH DUNN,

)
)
Plaintiff,
)
)
v.
)
)
LEO SCHMITZ, JOANN JOHNSON )
And ISAIAH VEGA,
)
)
Defendants.
)

Case No. 16-3308

OPINION AND ORDER
SUE E. MYERSCOUGH, U.S. DISTRICT JUDGE:
Before the Court is Defendants Leo Schmitz’, Joann
Johnson’s, and Isaiah Vega’s (“Defendants”) Motion for Summary
Judgment (d/e 20). Defendants have shown that, when the
undisputed material facts are viewed in the light most favorable to
Plaintiff Kenneth Dunn, Defendants are entitled to judgment as a
matter of law. Defendants’ Motion (d/e 20) is, therefore, GRANTED.
I.

FACTS

The Court draws the following facts from the parties’ Local
Rule 7.1(D)(1)(b) statements of undisputed material facts. The
Court discusses any material factual disputes in its analysis.

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Immaterial facts or factual disputes are omitted. Any fact
submitted by any party that was not supported by a citation to
evidence will not be considered by the Court. See Civil LR
7.1(D)(2)(b)(2). In addition, if any response to a fact failed to
support each allegedly disputed fact with evidentiary
documentation, that fact is deemed admitted. Id.
Plaintiff Kenneth Dunn began working for the Illinois State
Police (“ISP”) in 1990. In 2011, Plaintiff was assigned to work at the
Illinois Gaming Board under an inter-governmental agreement. In
September 2014, Plaintiff was placed on restricted duty after
Plaintiff’s superiors were told that Plaintiff was the subject of a
federal investigation.1 While in restricted status, Plaintiff was still
paid but was prohibited from performing other police functions.
The letter notifying Plaintiff of his restricted status was copied only
to those within his chain of command, the ISP legal office, and the
Administrative Services Bureau. The letter also was included in
Plaintiff’s personnel file.

While the parties dispute whether Plaintiff was the subject of an investigation at the time, this
dispute is immaterial to the Court’s decision because, as explained in the Court’s Analysis,
Plaintiff cannot prove one of the three essential elements of Plaintiff’s claim.
1

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Plaintiff remained on restricted status from September 2014
until his retirement on December 31, 2016. Plaintiff was notified in
January 2017 that he would be listed as retiring “not in good
standing” because he retired while still under restricted status.
Plaintiff appealed the denial of retirement in good standing to
Defendant Schmitz, but that appeal was denied in February 2017.
Plaintiff then filed a Complaint in November 2016, alleging
Defendants deprived Plaintiff of liberty interests guaranteed by the
Fourteenth Amendment and seeking a hearing and opportunity to
clear his name. Defendants now move for summary judgment
under Federal Rule of Civil Procedure 56.
II.

LEGAL STANDARD

Summary judgment is proper if the movant shows that no
genuine dispute exists as to any material fact and that the movant
is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a).
The movant bears the initial responsibility of informing the Court of
the basis for the motion and identifying the evidence the movant
believes demonstrates the absence of any genuine dispute of
material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
“[S]ummary judgment is the ‘put up or shut up’ moment in a
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lawsuit, when a party must show what evidence it has that would
convince a trier of fact to accept its version of events.” Johnson v.
Cambridge Indus., Inc., 325 F.3d 892, 901 (7th Cir. 2003).
On that evidence, the Court must determine whether a
genuine dispute of material facts exists. A genuine dispute of
material fact exists if a reasonable trier of fact could find in favor of
the nonmoving party. Carroll v. Lynch, 698 F.3d 561, 564 (7th Cir.
2012). When ruling on a motion for summary judgment, the Court
must construe facts in the light most favorable to the nonmoving
party and draw all reasonable inferences in the nonmoving party's
favor. Woodruff v. Mason, 542 F.3d 545, 550 (7th Cir. 2008).
III.

ANALYSIS

In his Complaint, Plaintiff alleges that Defendants violated
Plaintiff’s occupational liberty interest under the Fourteenth
Amendment when Defendant’s declined to issue a letter of good
standing when Plaintiff retired from the Illinois State Police.
Defendants argue that they are entitled to judgment as a matter of
law because Plaintiff cannot prove essential elements of Plaintiff’s
liberty interest claim. Specifically, Defendants assert that Plaintiff

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cannot show that the information Plaintiff states was stigmatizing
was publicly disclosed.
The Due Process Clause of the Fourteenth Amendment
guarantees that no “State shall deprive any person of life, liberty, or
property, without due process of law.” The Due Process Clause
imposes “constraints on governmental decisions which deprive
individuals of” interests in liberty. Mathews v. Edlridge, 424 U.S.
319, 332 (1976). This extends to a government employee’s liberty
interest in seeking employment following termination from
government employment. Bd. of Regents v. Roth, 408 U.S. 564,
573 (1972). Such interests are implicated where the government, in
terminating the employee, “‘makes any charge against [the
employee] that might seriously damage [his] standing and
associations in the community’ or ‘imposes on [the employee] a
stigma or other disability that forecloses [his] freedom to take
advantage of other employment opportunities.’” Id. (cleaned up).
To prove a government employer violated a plaintiff’s
occupational liberty interest, the plaintiff must prove “(1) he was
stigmatized by the employer's actions; (2) the stigmatizing
information was publicly disclosed; and (3) he suffered a tangible
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loss of other employment opportunities as a result of the public
disclosure.” Dupuy v. Samuels, 397 F.3d 493, 509–10 (7th Cir.
2005). Unlike a defamation action in which any public disclosure
gives rise to a claim, a liberty-interest plaintiff must show that the
stigmatizing information was broadly disclosed. Ratliff v. City of
Milwaukee, 795 F.2d 612, 627 (7th Cir. 1986) (“In a common law
defamation action, any publication of false and defamatory material
might be sufficient, but in the context of the liberty interest
protected by the Fourteenth Amendment, [Plaintiff] was required to
show broader publication.”) Moreover, the stigmatizing information
must have actually been disclosed to make out a liberty interest
claim—a plaintiff may not rely on the possibility of disclosure.
Johnson v. Martin, 943 F.2d 15, 16–17 (7th Cir. 1991).
Defendant is entitled to judgment as a matter of law here
because Plaintiff cannot show that any allegedly stigmatizing
information was publicly disclosed. Plaintiff only argues in his
Response that Plaintiff’s not-in-good-standing status has the
potential of being made public, not that it actually has been made
public. See Pl.’s Resp. (d/e 22) p. 19 (Arguing that Plaintiff’s status
“could be accessed through a FOIA request” and “any potential
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hiring employer is going to seek that information” and the
information “could be easily disclosed.” (emphasis added)). But that
argument was expressly rejected by the Seventh Circuit in Johnson
v. Martin. 943 F.2d 15. There, the Seventh Circuit held that a
plaintiff in a case claiming a deprivation of occupational liberty
interests must show actual publication to prove the claim and
rejected the likelihood-of-public-disclosure argument Plaintiff now
advances. Johnson, 943 F.2d at 16–17. Specifically, the Johnson
plaintiff argued that the fact that stigmatizing information in the
plaintiff’s personnel file—there, drug test results—remained
accessible to officers within the plaintiff’s chain of command meant
that the information could still be made public. Id. The plaintiff
then argued that the mere likelihood of public disclosure meant
that the public disclosure element of his liberty interest claim was
satisfied. Id. The Seventh Circuit, however, disagreed, holding that
“the mere existence of damaging information in Johnson's
personnel file cannot give rise to a due process challenge” and that
“in order to succeed on a constitutional defamation claim the
allegedly defamatory statement must actually be “made public.” Id.
at 17.
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In this case, while Defendant concedes that Plaintiff’s not-ingood-standing status has the potential to be shared with other
Illinois state agencies, Plaintiff, like the plaintiff in Johnson, has not
provided evidence or stated facts that would allow a reasonable trier
of fact to conclude that Plaintiff’s not-in-good-standing status was
actually publicly disclosed. As a result, Plaintiff cannot show that a
reasonable fact finder could conclude that Defendants violated his
occupational liberty interests. Because Plaintiff cannot show this
essential element of his occupational liberty interest claim, the
Court need not address the other elements. See Johnson, 943 F.2d
at 16 (dismissing case for failure to claim public disclosure and not
addressing other elements).
IV.

CONCLUSION

On the undisputed material facts, and when the inferences are
viewed in the light most favorable to Plaintiff, Defendants have
shown that they are entitled to judgment as a matter of law.
Accordingly, Defendants’ Motion for summary Judgment (d/e 19) is
GRANTED. The Clerk is DIRECTED to enter judgment in favor of
Defendants and against Plaintiff. All remaining deadlines and
settings are terminated. This case is closed.
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IT IS SO ORDERED.
ENTERED: March 31, 2022.
FOR THE COURT
/s/ Sue E. Myerscough____________
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE

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