Quint et al v. Butts et al

Filing 18

ORDER signed by Judge J P Stadtmueller on 2/16/12 granting 9 defendants' Motion to Dismiss; dismissing with prejudice plaintiffs' federal law claims, as contained in Counts one and Two of the Complaint; and, dismissing without prejudice plaintiffs' remaining state law claims, as contained in Counts Three through Six of the Complaint. See Order. (cc: all counsel) (nm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
MICHAEL QUINT and VICKI QUINT,
Plaintiff,
v.

Case No. 11-CV-905-JPS

HENRY BUTTS, RONALD A. KRUEGER,
CITY OF WATERTOWN, and
$45,000 UNITED STATES CURRENCY,

ORDER
Defendant.

On September 27, 2011, the plaintiffs, Michael Quint (“Quint”) and his
wife, Vicki Quint, filed a complaint against defendants Henry Butts (“Butts”),
Ronald Krueger, City of Watertown, and $45,000 United States Currency,
asserting claims for the deprivation of Quint’s civil rights under 42 U.S.C.
§ 1983, as well as various state law claims, all stemming from plaintiff’s
resignation from his position as a firefighter with the City of Watertown and
subsequent employment search. (Docket #1). In response, defendant Butts
filed a motion to dismiss, arguing that plaintiffs’ complaint fails to state a
claim under § 1983. The parties have fully briefed the court on the relevant
issues related to the motion to dismiss, and, as a result, the court is prepared
to rule on the motion.
1.

Legal Standard
A motion to dismiss under Fed. R. Civ. P. 12(b)(6) challenges the

sufficiency of the plaintiff’s complaint by asserting that the claimant failed to
state a claim upon which relief may be granted. See Fed. R. Civ. P. 12(b)(6).
To survive a motion to dismiss under Rule 12(b)(6), claimant’s complaint
must allege facts sufficient to “state a claim for relief that is plausible on its

face.” Justice v. Town of Cicero, 557 F.3d 768, 771 (7th Cir. 2009) (quoting
Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009)). Pleaders must “plead factual
content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Iqbal, 1129 S. Ct. at 1940. The
court construes the complaint in the light most favorable to the claimant,
accepts as true all well-pleaded facts alleged, and draws all possible
inferences in the claimant’s favor. Tamayo v. Blagojevich, 526 F.3d 1074, 1081
(7th Cir. 2008). Yet, the court need not accept as true “legal conclusions.”
Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). Indeed, “[a] ruling concerning
the legal sufficiency of the complaint is an appropriate determination to
make in response to a motion to dismiss.” Sanner v. Board of Trade of City of
Chicago, 62 F.3d 918, 924 (7th Cir. 1995) (citing Gomez v. Illinois State Board of
Education, 811 F.2d 1030, 1039 (7th Cir. 1987)).
2.

Background
Quint was the Assistant Chief of the Watertown Fire Department

(“WFD”) for eight years before his resignation in 2010. (Compl. ¶¶ 7, 13).
Defendant Butts was the Chief of the WFD while Quint was employed there.
(Compl. ¶ 7). In 2009, Quint filed a complaint against Butts with the City
Police and Fire Commission alleging misconduct by Butts. (Compl. ¶ 12). The
City filed countercharges against Quint. (Id.). After an investigation, and in
order to settle the dispute, Quint, Butts, and the City entered into a
separation agreement on January 8, 2010. (Compl. ¶ 13). In other words,
Quint offered to resign his employment in exchange for a set of conditions
and guarantees by the City and Butts. (Compl. ¶ 14). The separation
agreement provided that: (1) a letter of reference from the City’s Mayor
would be the sole reference for Quint’s subsequent employment search; (2)

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verbal references would be consistent with that letter; and (3) all parties were
to avoid negative comments about the other parties. (Id.).
In July of 2010, Quint applied for a fire chief position in Marshalltown,
Iowa. (Compl. ¶ 17). The Marshalltown, Iowa, newspaper published an
article on July 16, 2010, announcing three final candidates for fire chief, one
of whom was Quint. (Id.). Quint alleges that he had a positive reaction from
the City and a good chance of being hired. (Compl. ¶ 18). On July 27, 2010,
an article appeared in the newspaper with information about the
“Watertown situation.” (Id.). Quint suspected Butts provided information to
the newspaper. (Id.). Quint was not hired in Marshalltown, Iowa. (Id.).
Next, Quint applied for employment as fire chief in Benton, Illinois.
(Compl. ¶ 19). Again, he was a finalist for the position, his name was
announced in the local newspaper and posted on the internet, and Quint was
eventually offered the position. (Id.). However, soon thereafter, the Benton
City Council and the Mayor received anonymous letters which allegedly
stated the following:
We understand that you are considering hiring Mr. Michael
Quint to be the Fire Chief in your City. Before you make that
decision we strongly recommend that you make a public
records request of our Fire Chief asking for copies of the
charges he filed against Quint and also for copies of all of the
documentation that prove the charges were true and then you
will learn the real reasons why Quint had to leave Watertown.
Enclosed is a newspaper article from Marshalltown, Iowa and
what they did when they found out the truth. Don’t make the
same mistake our Chief did by hiring him.
(Id.). The Council then voted to rescind the offer of employment to Quint and
hired someone else. (Compl. ¶ 20). Quint also applied for positions with the
Cheyenne, Wyoming, Fire Department and the Chippewa Falls, Wisconsin,
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Fire Department. (Compl. ¶ 22). Once his identity as a finalist for these
positions became public, anonymous letters were sent to members of the
hiring authorities, urging the employers to conclude that Quint committed
misconduct in Watertown. (Id.).
As a result, Quint now claims that defendant Butts used a covert
campaign to infringe Quint’s liberty and property interests under color of
law and in violation of Quint’s constitutional rights. (Compl. ¶¶ 28-34). Quint
and his wife also allege various state law claims including: (1) bad faith job
reference in violation of Wisconsin law; (2) breach of contract; and (3) loss of
society and companionship. (Compl. ¶¶ 38-45). Lastly, plaintiffs have also
named $45,000 of United States Currency as a defendant in this action in an
attempt to attach these funds to assure they are available for payment of any
judgment against the defendants. (Compl. ¶¶ 46-47).
3.

Discussion
3.1

Property Interest

First, Quint’s complaint alleges that he was deprived of a property
interest in a “positive job reference” or, alternatively, “his reputation
concerning his job performance” without due process of law. (Compl. ¶ 33).
This claim fails, as Quint has no property interest in a positive job reference
or in his reputation concerning his job performance. The concept of property
as it relates to public employment is usually defined in terms of an
employee's legitimate claim of entitlement to his job. Board of Regents v. Roth,
408 U.S. 564, 577 (1972); Perry v. Sindermann, 408 U.S. 593, 602 (1972).
However, here, Quint’s complaint alleges a legitimate claim of entitlement
to a good faith job reference from his former employer, not the job itself.
There is no authoritative case law recognizing such an interest. Indeed,

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Quint points to no authority supporting his claim, save Wisconsin Statute
§ 895.0575, a statute that allegedly creates liability for employers if they
provide a job reference concerning current or former employees that is not
made in good faith. However, this statutory reference is not accurate.
Perhaps Quint meant to refer to Wis. Stat. § 895.487(2) instead, which
establishes a presumption that an employer responding to a reference
request is acting in good faith and is immune from all civil liability that may
result from providing that reference to a prospective employer. Id. The
statute also provides that the presumption of good faith may be lost if there
is clear and convincing evidence that the employer knowingly provided false
information, made the reference maliciously, or made the reference in
violation of Wisconsin's blacklisting statute. Id. Yet, even if Quint meant to
refer to this statute, rather than the non-existent § 895.0575, the statute does
not appear to apply in this case, as neither Quint nor any of his prospective
employers requested a job reference from Butts or the City of Watertown.
Instead, the complaint alleges that it was Butts who took the initiative in
contacting Quint’s prospective employers and in providing them with
purportedly false information concerning Quint. As such, it does not appear
that Wis. Stat. § 895.487(2) is implicated because the statute applies only to
requests for job references made by the prospective employer or employee.
However, even assuming that the statute applies to the circumstances
of this case, it does not necessarily create a property interest in a good faith
job reference or in a reputation concerning job performance. For one thing,
reputation is not “property” within the meaning of constitutional due
process. Paul v. Davis, 424 U.S. 693, 711-12 (1976). Moreover, the statute at
issue is essentially a codification of Wisconsin’s common law conditional

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privilege regarding defamation claims arising out of employment references.
See Gibson v. Overnite Transp. Co., 267 Wis.2d 429, 671 N.W.2d 388 (Wis. Ct.
App. 2003). Thus, the state statute does not technically create a legitimate
claim of entitlement for an employee, as is required for the existence of a
substantive property interest. Roth, 408 U.S. at 577. Instead, the statute
merely creates a conditional privilege for the employer.
Even if the court were to assume that Quint alleged he was deprived
of his property interest in his employment rather than his reputation or a
good faith job reference, Quint would still have failed to state a claim. That
is because Quint entered into a separation agreement, voluntarily resigning
his position. Thus, he relinquished any property interest in his job at the time
this agreement became effective in January of 2010. Accordingly, he chose
not to avail himself of any procedural due process safeguards he may
otherwise have been entitled to if he was fired. See Graehling v. Village of
Lombard, Ill., 58 F.3d 295, 297 (7th Cir. 1995) (finding that an employee who
resigns has decided not to avail himself of procedural due process
protections). In his response brief, Quint attempts to argue that he was
deprived of his property interest in his employment because Butts induced
him to resign under false pretenses – namely, by promising not to engage in
a “smear campaign” against Quint in Quint’s search for future employment.
In other words, Quint contends that Butts coerced his resignation. In turn,
Quint argues that he was entitled to some form of due process. While a
coerced resignation, like constructive discharge, is an independent wrong
and does not justify withholding due process of law to which a public
employee is entitled, Graehling, 58 F.3d at 298, Quint did not sufficiently
allege in his complaint that he was coerced into resigning or that his

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resignation was otherwise involuntary. Accordingly, the court finds that the
facts alleged by Quint do not show that he has been deprived of property
without due process of law. Therefore, his claim in this respect shall be
dismissed.
3.2

Liberty Interest

Even though Quint did not have a property interest in a positive job
reference, he did have a liberty interest in pursuing his occupation. See
Schware v. Board of Bar Examiners, 353 U.S. 232, 238–39 (1957). However, the
court also finds that Quint has failed to state a claim for violation of his
liberty interest.
Because Quint had an occupational liberty interest, the City was
required to afford Quint due process if, “in the process of discharging him,
it publicly charged him with immorality, dishonesty, or the like, or otherwise
stigmatized him in a way that foreclosed future employment opportunities.”
Fittshur v. Village of Menomonee Falls, 31 F.3d 1401, 1409 (7th Cir. 1994) (citing
Paul v. Davis, 424 U.S. at 701). The problem here is that, even assuming Quint
was stigmatized by the comments allegedly made by Butts to prospective
employers, Quint was not discharged or demoted such that procedural due
process protections were implicated. As discussed above in the context of
property interests, Quint entered into a separation agreement, voluntarily
resigning his position. Thus, he relinquished any liberty interest in his job at
the time this agreement became effective in January of 2010. See Siegert v.
Gilley, 500 U.S. 226, 234 (1991) (finding no deprivation of plaintiff’s
occupational liberty interest because plaintiff voluntarily resigned). Quint
appears to assume that the existence of the separation agreement
distinguishes his case from others in which courts have dismissed a plaintiff’s

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liberty interest claim because the plaintiff chose to resign. See id. Yet, this
court sees no difference between an employee who has entered into a
voluntary separation agreement and one who resigns voluntarily. They are
one and the same, as both employees are free to resign or not. Indeed,
Quint’s argument in this respect amounts to no more than an attempt to
constitutionalize a state law breach of contract claim relating to the
separation agreement. As such, it will not be entertained by this court.
Perhaps anticipating this, Quint also attempts to argue that his
resignation was involuntary because “Butts had no intention of honoring the
terms of the separation agreement.” (Pl.’s Br. at 5). Yet, Quint failed to allege
any such facts in his complaint. And, even assuming his resignation was
involuntary, the stigmatizing statements were not made in the context of, or
incident to, his termination of employment, and thus, his claim cannot stand.
See Siegert, 500 U.S. at 234; see also Klug v. Chicago School Reform Bd. of Trustees,
197 F.3d 853, 859 (7th Cir. 1999) (“One must show both a stigma and a failure
to rehire. The infliction of a stigma to reputation accompanied by a failure to
rehire (or, a fortiori, by a discharge) states a claim for deprivation of liberty
without due process within the meaning of the Fourteenth Amendment.”);
McMath v. City of Gary, 976 F.2d 1026, 1032 (7th Cir. 1992)
(“Siegert…emphasized that the publication [of stigmatizing statements] must
occur in the context of termination”); Wroblewski v. City of Washburn, 965 F.2d
452, 456 (7th Cir. 1992) (observing that Siegert’s “requirement that the
defamatory statement be ‘incident to’ the adverse employment action is a
strict one”). In this case, the alleged defamation was not uttered incident to
the termination of Quint’s employment by the WFD. Rather, the statements
were made months after the parties signed the separation agreement. Simply

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because the statements could be said to have breached the separation
agreement does not mean the statements were made incident to or in the
context of Quint’s termination. At most, what Quint has alleged is a state law
defamation claim or breach of contract claim, not a constitutional violation.
Accordingly, the court will dismiss Quint’s claim in this respect.
3.3

Substantive Due Process

Lastly, Quint urges that his substantive due process rights were
violated. Specifically, Quint contends that Butts’s conduct and the City’s
indifference to that conduct deprived him of substantive due process, as this
is the sort of governmental power that “shocks the conscious” under Rochin
v. California, 342 U.S. 165, 172 (1952).
The “substantive” component of the due process clause forbids
“arbitrary infringements of certain personal immunities that are ‘implicit in
the concept of ordered liberty,’” Wroblewski v. City of Washburn, 965 F.2d at
457 (quoting Palko v. Connecticut, 302 U.S. 319, 325 (1937)), or that “shock the
conscience.” Rochin v. California, 342 U.S. at 172. The Supreme Court urges
courts to use caution and restraint in applying substantive due process. See
Regents of Univ. of Michigan v. Ewing, 474 U.S. 214, 225–26 (1985). The scope
of substantive due process has been severely limited by the courts. See
Saukstelis v. City of Chicago, 932 F.2d 1171, 1173 (7th Cir. 1991) (“Outside the
realm of personal liberties, substantive due process may be a misnomer for
the enforcement of rights expressly established in the Constitution and
applied to the states through the fourteenth amendment”).
Although Quint contends that a substantive due process right is at
issue, he fails to identify the nature of such a right or to show that he has an
entitlement to such a right. See New Burnham Prairie Homes, Inc. v. Village of

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Burnham, 910 F.2d 1474, 1479 (7th Cir. 1990) (citing Roth, 408 U.S. at 577)
(“Before a party may assert a due process argument—procedural or
substantive—it must establish that it has a ‘legitimate claim of entitlement’
to the right being asserted”). It is not enough to allege that governmental
actions “shock the conscious.” A plaintiff must also allege that the
government action impinged a fundamental liberty or property interest.
Belcher v. Norton, 497 F.3d 742, 754 (7th Cir. 2007). To the extent Quint alleges
that the defendants’ actions deprived him of an occupational liberty interest,
the court must dismiss his claim, as occupational liberty is not protected by
substantive due process. Illinois Psychological Ass'n. v. Falk, 818 F.2d 1337,
1343-44 (7th Cir. 1987). To the extent Quint may be arguing that he had a
fundamental right to enforcement of the parties’ separation agreement, the
court must also dismiss his claim, as Quint has not established that such a
fundamental right exists. Ultimately, Quint’s argument in this respect
amounts to no more than a state law breach of contract claim. The facts
alleged by Quint cannot be held to state a claim for denial of a constitutional
right. Accordingly, the court will dismiss all of Quint’s federal law claims
with prejudice.
The only basis for the court to exercise jurisdiction over plaintiffs’
remaining state law claims is the court's supplemental jurisdiction as
provided by 28 U.S.C. § 1367(a). As a general rule, when all federal claims
have been dismissed prior to trial and only pendant claims remain, “the
federal court should relinquish jurisdiction over the remaining pendant state
claims.” Williams v. Rodriguez, 509 F.3d 392, 404 (7th Cir. 2007). Therefore, the
court declines to exercise supplemental jurisdiction over plaintiffs’ remaining
state law claims against the defendants. Instead, the court will dismiss these

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claims without prejudice, allowing the plaintiffs the opportunity to present
these claims to the state court if they so desire.
Accordingly,
IT IS ORDERED that defendants’ motion to dismiss (Docket #9) be
and the same is hereby GRANTED;
IT IS FURTHER ORDERED that plaintiffs’ federal law claims, as
contained in Counts One and Two of the Complaint, be and the same are
hereby DISMISSED with prejudice; and
IT IS FURTHER ORDERED that plaintiffs’ remaining state law
claims, as contained in Counts Three through Six of the Complaint, be and
the same are hereby DISMISSED without prejudice.
The clerk of court is directed to enter judgment accordingly.
Dated at Milwaukee, Wisconsin, this 16th day of February, 2012.
BY THE COURT:

J.P. Stadtmueller
U.S. District Judge

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