Bertrang, Bonnie v. City of Mondovi et al
Filing
23
OPINION AND ORDER granting in part and denying in part 16 Motion for Partial Judgment on the Pleadings. The motion is granted with respect to plaintiff Bonnie Bertrang's claims that defendants violated her rights to procedural and substantive due process, and those claims are dismissed. The motion is denied in all other respects. Signed by District Judge Barbara B. Crabb on 8/20/2018. (kwf)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
- - - - - - - - - - - - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - BONNIE BERTRANG,
OPINION AND ORDER
Plaintiff,
17-cv-918-bbc
v.
CITY OF MONDOVI, TREIG E. PRONSCHINSKE
and SCOTT SMITH,
Defendants.
- - - - - - - - - - - - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - This civil action brought under Title VII of the Civil Rights Act and 42 U.S.C. § 1983
arises out of plaintiff Bonnie Bertrang’s employment as a patrol officer for defendant City
of Mondovi from 2007 to 2015. Plaintiff contends that defendants City of Mondovi, Treig
E. Pronchinske, the mayor, and Scott Smith, another police officer, harassed her and
discriminated against her because of her sex and gender, violated her rights to equal
protection and due process and eventually caused her to resign.
Now before the court is defendants’ motion for partial judgment on the pleadings
with respect to five out of six of the counts plaintiff includes in her amended complaint.
Dkt. #16. Defendants argue that plaintiff’s allegations supporting those five counts are
insufficient to state a claim upon which relief may be granted. Dkt. #16. For the reasons
set out below, I am granting the motion with respect to plaintiff’s due process claims. Those
claims will be dismissed for failure to state a claim upon which relief may be granted. I am
denying the motion in all other respects.
1
Plaintiff alleges the following facts in her amended complaint.
ALLEGATIONS OF FACT
A. The Parties
Plaintiff Bonnie Bertrang began working as a part-time patrol officer for the City of
Mondovi in March 2007. In May 2013, she was promoted to full-time patrol officer. In
April 2014, defendant Treig Pronschinske became mayor of the City. Defendant Scott
Smith was also an officer with the police department.
B. Defendant Pronschinske’s Interactions with Plaintiff
Within days of becoming mayor, defendant Pronschinske began seeking out plaintiff
while she was on or off duty to talk about non-police related business. Pronschinske told
plaintiff on multiple occasions that his wife and daughter were out of town so he was home
alone. Pronschinske also drove by plaintiff’s home several times a day and followed plaintiff
while she was on patrol, stopping her to talk and telling her he was worried about her
patrolling alone. Plaintiff rebuffed what she perceived as Pronschinske’s attempts to form
a relationship with her and reported Pronschinske’s conduct to the chief of police, who
forwarded plaintiff’s complaints to the city administrator and a city council member.
Around this time, Pronschinske contacted the chief of police and requested that plaintiff’s
probation be extended. However, by that time, plaintiff was a non-probationary employee.
2
C. Opening for Chief of Police Position
In July 2014, the chief of police, Terry Pittman, announced his retirement.
Defendant Pronschinske formed a hiring committee consisting of Chief Pittman and two city
council members, Galen Hagen and Robert Hoden. Under then-existing procedures, the
hiring committee would consider all candidates and make a recommendation to the mayor
and city council. The new chief of police would be appointed by the mayor, subject to
confirmation by two-thirds of the members of the city council.
Plaintiff and another officer, defendant Scott Smith, applied for the position. In
September 2014, the hiring committee interviewed both candidates. All three committee
members recommended that plaintiff be hired as the interim chief of police, concluding that
plaintiff’s skills, experience, recommenders and interview responses were vastly superior to
Smith’s.
Defendant Pronschinske told the committee he would not accept the
recommendation. The next day, Pronschinske met with defendant Smith for more than an
hour. During October and November 2014, Pronschinske and Smith began spending a lot
of time together, both at the police department and outside of work.
After the committee recommended plaintiff as the new chief of police, anonymous
letters were sent to Chief Pittman and various council members regarding plaintiff. At least
one of the letters included a picture of plaintiff wearing a bikini.
Additionally, an
anonymous Facebook page was started that consisted of posts and content meant to degrade
and humiliate plaintiff and “highlight her sex/gender.”
At the October 14, 2014 city council meeting, defendant Pronschinske removed the
3
action item “appointing interim chief” from the agenda, stating he was not prepared to
appoint anyone at that time.
At the next council meeting, on October 28, 2014,
Pronschinske read plaintiff’s application for the chief of police position, though he did not
read any of her letters of recommendation. He then “belittled” plaintiff’s application and
qualifications. City administrator Dan Lauersdorf told Pronschinske that any discussions
regarding personnel issues should be conducted in a closed session, but Pronschinske told
Lauersdorf to “shut up.” Pronschinske then read a newly produced letter of recommendation
for defendant Smith aloud, though he did not read Smith’s application. A few people at the
meeting, including Smith’s friends and relatives, expressed concerns over the appointment
process.
Sometime between October 28 and November 11, 2014, defendant Pronschinske
formed a “citizen participation committee,” consisting of a city council member,
Pronschinske’s wife and personal friends of Pronschinske and Smith. On November 11,
2014, Pronschinske appointed defendant Smith as the “officer in charge” of the police
department, giving Smith the authority to act as the chief of police in Chief Pittman’s
absence. The following day, the citizen participation committee posted notices for two
upcoming meetings, open to the public, to be held on November 20 and 25, 2014.
Historically, citizen participation meetings occurred only to discuss budget items, not
an employee’s personal life or background.
At the meetings conducted by defendant
Pronschinske, however, the sole topic of discussion was plaintiff’s application to be chief of
police. The meetings included discussion about plaintiff’s gender, pictures of her in a bikini
4
from her Facebook page and the anonymous letters sent to council members that
commented on plaintiff’s gender. Pronschinske did not rebuke anyone who criticized
plaintiff because of her gender. He also discussed a small claims action that had been filed
against plaintiff several years earlier and stated that he had checked out plaintiff’s references
and they were not valid. There were no comments or discussions at the meetings regarding
defendant Smith.
After the meetings, the citizen participation committee made recommendations for
the qualifications of the city’s police chief. Among other qualifications, the new chief was
to have 7-10 years of law enforcement experience and be a certified law enforcement officer.
The new qualifications did not rule out plaintiff. However, defendants Pronschinske and
Smith then added additional qualifications in order to exclude plaintiff from consideration,
among them a requirement that each application must have 7-10 “full time” and “sworn”
years of law enforcement experience. Plaintiff had 14 years of law enforcement experience,
including seven years of sworn law enforcement experience. However, she had only two
years of “full time sworn” experience.
In January 2015, defendant Pronschinske directed the city’s attorney to revise the
ordinance governing the procedures for hiring a new chief of police. The ordinance was
changed to expand the number of individuals on the hiring committee from three to five,
with three of those individuals being chosen by the mayor. Pronschinske then selected the
new committee, including two personal friends of Smith. After the revised job qualifications
were posted, plaintiff applied for the position, but her application was rejected because she
5
did not meet the new qualifications. Of the remaining four applicants, one was female and
three were male. The other female applicant was fully qualified and was currently the police
chief for a similarly-sized city in Wisconsin, but she was cut after the first round of
interviews. Smith was ultimately hired as chief of police.
D. Defendant Smith’s Conduct toward Plaintiff
After defendant Smith became chief of police, plaintiff’s son developed a serious
health condition and plaintiff applied for family leave. Smith denied plaintiff’s request for
leave. After plaintiff complained to the city administrator and police union, her request was
approved.
Defendant Smith made numerous “sexual comments and sex-based comments” about
plaintiff to her co-workers, including “wouldn’t she be a fun ride,” she “had a nice rack,” she
was “very attractive” and the city crew “loved to sniff the squad care seat after you/she was
done using it.” Smith also called her “runt,” “puny” and “small,” and made comments in her
presence about other women’s appearances.
E. The City Hires a Sergeant and Plaintiff Resigns
Defendant Smith could not manage the police department on his own because he did
not have the necessary skills, training and experience. The City posted an opening for a
sergeant position to assist Smith. Plaintiff applied for the sergeant position, but she was
excluded because the job description was written by Smith and Pronschinske to require 7-10
6
years of full-time sworn law enforcement experience.
By spring 2015, plaintiff believed that she would not be treated fairly by defendants
Pronschinske and Smith and that she would not be able to advance while employed by the
City. She ultimately resigned.
OPINION
Plaintiff’s amended complaint includes the following six “causes of action”:
(1) Sex/Gender Discrimination – Terms and Conditions of Employment, 42 U.S.C.
§ 2000e-2;
(2) Sex/Gender Discrimination – Sex-Based Harassment, 42 U.S.C. § 2000e-2;
(3) Sex/Gender Discrimination – Failure to Hire/Promote, 42 U.S.C. § 2000e-2;
(4) Sex/Gender Discrimination – Constructive Discharge, 42 U.S.C. § 2000e-2;
(5) Deprivation of Civil Rights (equal protection and due process) against Individual
Defendants, 42 U.S.C. § 1983; and
(6) Deprivation of Civil Rights against City of Mondovi, 42 U.S.C. § 1983.
Defendants have moved under Federal Rule of Civil Procedure 12(c) for judgment on
the pleadings with respect to all of the counts except count 3, which is based on plaintiff’s
allegations that defendants failed to hire or promote her to the positions of officer in charge,
police chief and sergeant because of her sex. A motion for judgment on the pleadings is
subject to the same standard as a motion to dismiss under Rule 12(b)(6). Gill v. City of
Milwaukee, 850 F.3d 335, 339 (7th Cir. 2017). Therefore, I must determine whether the
7
complaint states “a claim to relief that is plausible on its face.” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
I will apply this standard to each of defendants’ arguments below.
A. Discrimination in Terms of Conditions of Employment (Count 1)
In Count 1 of the amended complaint, plaintiff alleges that defendants treated her
less favorably than male coworkers and applicants because of her sex. Defendants argue that
this count should be dismissed because it is duplicative of plaintiff’s other theories of
discrimination. In particular, defendants argue that plaintiff fails to identify any distinct
adverse action in Count 1 that is not also included in Counts 2, 3 and 4, which include her
promotion, hostile work environment or constructive discharge theories. Plaintiff responds
that a jury could consider the “totality” of allegations included in Counts 1, 2, 3 and 4 in
deciding whether plaintiff was treated differently because of her sex and thus, the fact that
the allegations supporting the various counts overlap is not reason to dismiss Count 1.
Plaintiff is correct. Under Rule 8, a plaintiff must plead “a short and plain statement
of the claim showing that the pleader is entitled to relief.” A “claim” is simply a set of facts
producing an injury. N.A.A.C.P. v. American Family Mutual Ins. Co., 978 F.2d 287, 292
(7th Cir. 1992). The “counts” in plaintiff’s complaint are not necessarily “claims,” but
rather are the articulation of legal theories on which plaintiff’s claims are premised. Under
8
the federal rules, a plaintiff may advance more than one legal theory in support of a single
claim, and those alternative theories may, but need not be, set forth in separate counts. Id.;
Fed. R. Civ. P. 8(d)(2)). This does not mean that plaintiff would be able to recover twice
for the same injury. Id. (“[D]ifferent legal theories [] do not multiply the number of claims
for relief.”) Rather, plaintiff can recover only once for each injury she alleges, regardless how
many legal theories she raises. In other words, the federal rules permit plaintiffs to include
multiple legal theories based on the same set of allegations. That the theories may be
duplicative is not reason to dismiss them.
Defendants’ only argument for dismissal of Count 1 is its duplicative nature. Because
that argument is not persuasive, I will deny the motion to dismiss Count 1.
B. Hostile Work Environment and Constructive Discharge (Counts 2 and 4)
Next, defendants argue that Counts 2 and 4 of plaintiff’s amended complaint should
be dismissed because her allegations suggest that defendants and others engaged in low-level
harassment that was not severe enough to create a hostile work environment or require her
to resign. In particular, defendants argue that plaintiff’s allegations regarding defendant
Pronschinske’s advances and his subsequent actions in publicly humiliating her and refusing
to appoint her as chief of police are not sufficiently severe to support harassment or
constructive discharge claims. Similarly, defendants argue that Smith’s sexual comments and
stray statements about plaintiff’s and other women’s appearances would not support
harassment or constructive discharge claims.
9
Defendants’ arguments are not persuasive.
Defendants rely primarily on cases
decided at summary judgment or after a jury trial and fail to acknowledge that this case is
only at the pleading stage. E.g., Mannie v. Potter, 394 F.3d 977, 979 (7th Cir. 2005)
(summary judgment); Adusumilli v. City of Chicago, 164 F.3d 353, 361 (7th Cir. 1998)
(summary judgment); Gleason v. Mesirow Financial, Inc., 118 F.3d 1134, 1145 (7th Cir.
1997) (summary judgment); Baskerville v. Culligan International Co., 50 F.3d 428, 430 (7th
Cir. 1995) (jury trial); Weiss v. Coca-Cola Bottling Co. of Chicago, 990 F.2d 333, 337 (7th
Cir. 1993) (summary judgment); Boebel v. Combined Insurance Co. of America, No. 02 C
1772, 2004 WL 144135, at *1 (N.D. Ill. Jan. 16, 2004) (summary judgment).
As the Court of Appeals for the Seventh Circuit has stated repeatedly, “[t]he pleading
requirement for employment-discrimination claims is minimal.” Clark v. Law Office of
Terrence Kennedy, Jr., 709 F. Appx. 826, 828–29 (7th Cir. 2017). See also Carlson v. CSX
Transp., Inc., 758 F.3d 819, 827 (7th Cir. 2014) (criticizing district court for relying on
“summary judgment decisions that addressed not the content of complaints but the evidence
needed to take a claim to a jury”). To state a claim of sex discrimination, a plaintiff need
only “aver that the employer instituted a (specified) adverse employment action against the
plaintiff on the basis of her [or his] sex.” Tate v. SCR Medical Transportation, 809 F.3d
343, 346 (7th Cir. 2015) (quoting Tamayo v. Blagojevich, 526 F.3d 1074, 1084 (7th Cir.
2008)). See also Rutledge v. Illinois Dept. of Human Services, 785 F.3d 258, 259 (7th Cir.
2015); Swanson v. Citibank, N.A., 614 F.3d 400 (7th Cir. 2010); EEOC v. Concentra
Health Services, Inc., 496 F.3d 773, 781-82 (7th Cir. 2007) (stressing simplicity of pleading
10
Title VII discrimination claim). As the court of appeals has explained, “[e]mployers are
familiar with discrimination claims and know how to investigate them, so little information
is required to put the employer on notice of these claims.” Carlson, 758 F.3d at 827 (stating
that it was sufficient for plaintiff to identify which positions she sought and was denied and
attribute the denial to sex discrimination).
This minimal pleading standard also applies to discrimination claims based on a
hostile work environment or constructive discharge. As the court of appeals explained in
Carlson, a district court should not dismiss such claims at the pleading stage if the “[hostile]
situation is identified and the unlawful motivation alleged.” Id. at 830. This is particularly
true where the plaintiff “include[s] specific examples of poor treatment.” Id. The court
emphasized that, even if the conditions “described in her complaint may not ultimately
qualify as intolerable, [] we cannot say so definitively at the pleading stage, which (we stress
again) is before any evidence is required.” Id.
Under the standards applicable at the pleading stage, plaintiff has adequately alleged
that she was subjected to a hostile work environment and constructive discharge based on
her sex. She asserts that she was treated so poorly by defendants Pronschinske and Smith
that she was effectively forced out of her position with the police department. She also
contends that the treatment was motivated by her sex. She includes examples of the poor
treatment. I cannot say definitively at the pleading stage that plaintiff will not be able to
prove that her conditions were intolerable. Therefore, I will deny defendants’ motion to
dismiss plaintiff’s hostile work environment and constructive discharge claims.
11
C. Procedural Due Process
Plaintiff also raises procedural due process claims based on two theories: (1) loss of
her employment without a hearing and an opportunity to be heard; and (2) the airing of
private information about her at public meetings without prior notice. To state a claim for
a procedural due process violation, a plaintiff must allege (1) a liberty or property interest
protected by the constitution; (2) a deprivation of that liberty or property interest; and (3)
a denial of due process. Forgue v. City of Chicago, 873 F.3d 962, 969 (7th Cir. 2017).
Defendants argue that plaintiff’s procedural due process claims should be dismissed because
her allegations do not suggest that she was deprived of any liberty or property interest
protected by the constitution. I agree with defendants for the reasons below.
1. Plaintiff’s loss of employment
Plaintiff contends that she was denied due process because she was not given a
hearing and opportunity to be heard before she was constructively discharged.
As a
necessary predicate to her claim, plaintiff contends that she had a constitutionally protected
property interest in her continued public employment under Wis. Stat. § 62.13(5) and (6m).
That statute gives hearing rights to non-probationary police officers. Plaintiff argues that
because of the protections in § 62.13, she was not an “at-will” employee, could only be
terminated for “cause” and was entitled to a hearing before her termination.
In response, defendants argue that plaintiff misinterprets § 62.13. Defendants state
that § 62.13(5) and (6m) confer hearing rights only when an officer is “disciplined,” either
12
by suspension, reduction in rank or discharge. Defendants argue that because plaintiff has
not alleged that defendants “disciplined” her, she was not entitled to a just cause hearing
contemplated under the statute and was not deprived of any property interest.
There is some support in Wisconsin case law for defendants’ narrow reading of the
hearing rights conferred by § 62.13(5) and (6m). In Kraus v. City of Waukesha Police &
Fire Commission, 2003 WI 51, ¶¶ 65-69, 261 Wis. 2d 485, 662 N.W.2d 294, the
Wisconsin Supreme Court stated that § 62.13(5) and (6m) require just cause hearing s only
for negative job actions that are disciplinary in nature. See also Eastman v. City of Madison,
117 Wis. 2d 106, 115, 342 N.W.2d 764 (Ct. App. 1983) ( “Section 62.13(5) on its face
only applies to proceedings of a disciplinary nature.”).
On the other hand, plaintiff may have had a property interest in her employment,
regardless whether she was entitled to the specific hearing rights conferred by § 62.13(5) and
(6m). An entitlement and protectable property interest “need not be codified in writing; a
‘de facto’ unwritten or implied policy is sufficient to create an entitlement and protectable
property interest.” Forgue, 873 F.3d at 970. As relevant here, there is legal authority
suggesting that because non-probationary police officers may not be terminated without
cause, they have a protectable property interest in their continued employment. See, e.g.,
Kraus, 2003 WI 51, ¶ 57 (“[A]fter an officer completes the probationary period for a
position, including a promotion, [] a property interest arises in that position.”); Listenbee
v. City of Milwaukee, 976 F.2d 348, 351 (7th Cir. 1992) (“[U]nder Wisconsin law an
employee terminable only for cause has a protected property interest in her employment.”).
13
Further, once a local government grants a substantive property interest, “it may not define
the minimum constitutional requirements of due process.” Listenbee, 976 F.2d at 352.
Thus, if plaintiff had a property interest in her continued employment, she could not be
deprived of it without due process, regardless whether the specific hearing rights
contemplated by § 62.13(5) and (6m) apply to her situation.
However, even if I assume plaintiff had a protected property interest in her continued
employment as a non-probationary police officer, plaintiff’s procedural due process claim still
fails because her due process theory makes no sense. Plaintiff contends that she was entitled
to due process before she was constructively discharged, but she does not explain what
process she believes she was owed. She says only that she was entitled to “notice and an
opportunity to be heard” before she was constructively discharged, Plt.’s Opp. Br., dkt. #20
at 23, but she does not suggest that a pre-termination hearing would have been practical or
even possible. According to plaintiff’s own allegations, her constructive discharge resulted
from a series of actions taken by defendants over the course of several months. As plaintiff
alleges, her work environment became so hostile because of the “numerous acts of sexual
discrimination and harassment” and “public degrad[ation] and belittle[ment]” that she
suffered extreme stress and eventually concluded that she could not “effectively and safely
continued to preform her job duties.” Plt.’s Am. Cpt., dkt. #13, ¶¶ 112-115. Under these
circumstances, it would not have been practical to hold a due process hearing before plaintiff
was constructively discharged.
Plaintiff’s claim is similar to the claim this court dismissed in Witte v. Wisconsin
14
Dept of Corrections, No. 03-C-0438-C, 2004 WL 2491592 (W.D. Wis. Nov. 4, 2004),
aff’d, 434 F.3d 1031 (7th Cir. 2006), in which the plaintiff had argued that he should have
been given a hearing before he was subjected to a hostile work environment and
constructively discharged. As I explained in Witte, it would be an “impossible expansion of
due process” to require employers to provide hearings before an employee is subjected to
actions that may ultimately become a hostile work environment. Id. at 5. The plaintiff’s
claim was distinguishable from the claim at issue in Parrett v. City of Connorsville, 737 F.2d
690, 694 (7th Cir. 1984), in which the court of appeals held that the plaintiff was entitled
to a hearing after defendant demoted him from chief of detectives to the uniformed force
and refused to assign him any police duties. Because a refusal to assign an officer any duties
whatsoever is a discrete action creating an obvious constructive discharge, the employer was
obligated and could have provided the employee a hearing “reasonably contemporaneously
with the employment action.” Witte, 2004 WL 2491582, at 5.
Despite her reliance on Parrett, plaintiff’s claim in this case is more like the claim at
issue in Witte than the one in Parrett. Unlike the situation in Parrett, plaintiff has not
identified a specific action by defendants that was the functional equivalent of a discharge,
such as the loss of job title, job duties or salary. Plaintiff also has not identified any specific
point at which she should have been given a pre-termination hearing. Instead, she simply
argues vaguely that she should have been given process. However, because plaintiff has cited
no legal authority to support her claim that she was entitled to a pre-termination hearing or
any other specific process under the circumstances here, I am dismissing her procedural due
15
process claim based on the loss of her employment.
2. Discussions about plaintiff at public meetings
Next, plaintiff contends that defendant Pronschinske violated her due process rights
by discussing her application and qualifications for chief of police at public meetings without
providing her prior notice and an opportunity to be heard. Plaintiff contends that in
discussing her application and qualifications with the public, Pronschinske deprived her of
both property and liberty interests protected by the constitution.
As the basis for her property interest, plaintiff cites Wisconsin’s Freedom of
Information Act, Wis. Stat. §§ 19.36(10)(c) and (d), 19.356, and the city’s “historical
practice” of not discussing personnel data in open sessions. However, these statutes govern
what can be disclosed to the public upon request by a citizen.
Although they create
procedural rules, plaintiff cites nothing in the statutes suggesting that they create property
rights protected by the United States Constitution. Nor am I persuaded that these statutes
should be interpreted as creating constitutionally-protected property interests. I conclude,
therefore, that plaintiff has not stated a procedural due process claim based on the
deprivation of a property interest at the public meetings. Manley v. Law, 889 F.3d 885, 893
(7th Cir. 2018) (affirming dismissal of procedural due process claim where “plaintiffs have
identified no substantive liberty or property interest attached to the procedural rules they
claim the district violated”); Lafayette Linear v. Village of University Park, Illinois, 887 F.3d
842, 844 (7th Cir. 2018) (rejecting argument “that procedures required by state law create
16
property interests and hence lead to a federal requirement that the state procedures be
used”); Miyler v. Village of East Galesburg, 512 F.3d 896, 898 (7th Cir. 2008) (“Procedural
guarantees do not establish a property interest protected under the Fourteenth Amendment’s
Due Process Clause.”).
Plaintiff also contends that she was deprived of liberty interests in her reputation and
privacy because defendant Pronschinske defamed her. With respect to her reputation,
however, it is well established that a plaintiff cannot bring a due process claim based solely
on reputational harm alone stemming from defamatory statements. Swanigan v. City of
Chicago, 881 F.3d 577, 584 (7th Cir. 2018) (“[R]eputational harm doesn’t deprive a person
of life, liberty, or property.”); Hinkle v. White, 793 F.3d 764, 767 (7th Cir. 2015) (“[M]ere
defamation by the government does not deprive a person of ‘liberty’ protected by the
Fourteenth Amendment, even when it causes serious impairment of one’s future
employment.”) (citation omitted). Rather, a plaintiff must allege “injury to reputation along
with a change in legal status.” Hinkle, 793 F.3d at 768. In the employment context, a
plaintiff may state a due process claim by alleging that a state actor injured the plaintiff’s
reputation and “distinctly altered” or “extinguish[ed]” the plaintiff’s ability to find a position
in her chosen field, such as by placing the plaintiff’s name on a list that would prevent her
from working in her chosen profession. Id. at 770.
Here, plaintiff concedes that she “cannot state she will have limited to no job
prospects in the law enforcement field going forward because of what was done to and said
publicly about her.” Plt.’s Opp. Br., dkt. #20, at 44. Although plaintiff argues that she
17
should be permitted to proceed on a claim based solely on reputational harm, nothing in the
law supports her argument. Therefore, her reputation-based due process claim will be
dismissed.
Finally, plaintiff’s privacy-based claim will also be dismissed. Plaintiff contends that
she was entitled to due process before defendant Pronschinske revealed private information
about her education, past employment and references to the public. However, plaintiff cites
no legal authority to support her argument that this information, which she included in her
application for public employment, is entitled to constitutional protection. The only case
she cites, Roe v. Wade, 410 U.S. 113 (1973), is clearly distinguishable. Therefore, plaintiff’s
procedural due process claims arising from defendant Pronschinske’s discussion of her
application and qualifications at public meetings will be dismissed.
D. Substantive Due Process
Plaintiff includes a substantive due process claim in her amended complaint.
Defendants have moved to dismiss this claim on the ground that plaintiff has not alleged the
violation of any fundamental right and defendants’ actions do not “shock the conscience.”
I agree with defendants that plaintiff’s allegations are not sufficient to state a claim
for violation of her substantive due process rights. “The Supreme Court has repeatedly
cautioned against expanding the contours of substantive due process. Catinella v. County
of Cook, Illinois, 881 F.3d 514, 518 (7th Cir. 2018) (citing County of Sacramento v. Lewis,
523 U.S. 833, 842 (1998) (“[W]e have ‘always been reluctant to expand the concept of
18
substantive due process.’”)). “Substantive due process claims can address harmful, arbitrary
acts by public officials[,] [b]ut such claims must meet a high standard, even when the alleged
conduct was abhorrent, to avoid constitutionalizing every tort committed by a public
employee.” Geinosky v. City of Chicago, 675 F.3d 743, 750 (7th Cir. 2012). “[T]he Court
has limited the reach of the substantive component of the due-process guarantee to cases
involving abuse of governmental power so arbitrary and oppressive that it shocks the
conscience.” Catinella, 881 F.3d at 519, or interferes with the “fundamental rights of
marriage, reproduction, child-rearing, and bodily integrity.” Viehweg v. City of Mount
Olive, 559 F. Appx. 550, 552 (7th Cir. 2014) (citing Sung Park v. Indiana University School
of Dentistry, 692 F.3d 828, 832 (7th Cir. 2012)).
In this instance, although her allegations of harassment are troubling, plaintiff has not
pleaded facts suggesting a deprivation that “shocks the conscience” in the sense required in
due process cases. Compare Rochin v. California, 342 U.S. 165, 172 (1952) (forcible
stomach pumping to retrieve swallowed evidence violates substantive due process), with
Geinosky, 675 F.3d at 750–51 (explaining that, although issuing 24 bogus parking tickets
constituted deliberate and unjustified official harassment, conduct did not violate
substantive due process). Therefore, her substantive due process claim will be dismissed.
ORDER
IT IS ORDERED that the motion for partial judgment on the pleadings filed by
defendants City of Mondovi, Treig E. Pronschinske and Scott Smith, dkt. #16, is
19
GRANTED IN PART and DENIED IN PART. The motion is GRANTED with respect to
plaintiff Bonnie Bertrang’s claims that defendants violated her rights to procedural and
substantive due process, and those claims are DISMISSED. The motion is DENIED in all
other respects.
Entered this 20th day of August, 2018.
BY THE COURT:
/s/
________________________
BARBARA B. CRABB
District Judge
20
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?