Robin Meade v. Moraine Valley Community Colle , 770 F.3d 680 ( 2014 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 14-1217
ROBIN MEADE,
Plaintiff-Appellant,
v.
MORAINE VALLEY COMMUNITY COLLEGE,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 13 C 7950 — Samuel Der-Yeghiayan, Judge.
____________________
ARGUED SEPTEMBER 8, 2014 — DECIDED OCTOBER 30, 2014
____________________
Before WOOD, Chief Judge, and POSNER and HAMILTON,
Circuit Judges.
WOOD, Chief Judge. In August 2013, Robin Meade wrote a
letter to the League for Innovation in the Community Col-
lege about her employer, Moraine Valley Community Col-
lege. The letter was not complimentary. Meade, an adjunct
faculty member at Moraine Valley, leveled multiple charges
at the college regarding its poor treatment of adjuncts. These
practices, she charged, harmed Moraine Valley’s students.
2 No. 14-1217
She signed the letter in her capacity as president of the Mo-
raine Valley Adjunct Faculty Organization, a union repre-
senting the college’s adjunct faculty. Two days later, Moraine
Valley fired Meade. Its explanation for doing so was unusu-
ally frank: it sent her a written notice explicitly citing
Meade’s letter as the reason for its action. A few weeks later,
the college warned Meade that it would regard her further
presence on campus as criminal trespass.
Believing that Moraine Valley retaliated against her for
exercising her right to freedom of speech and violated her
due process rights, Meade sued the college in federal district
court under 42 U.S.C. § 1983. Moraine Valley persuaded the
district court to dismiss for failure to state a claim. The court
first concluded that Meade’s letter did not address matters of
public interest and thus could not serve as the basis of a First
Amendment retaliation claim. It rejected Meade’s due pro-
cess claim for lack of a cognizable property interest in her
employment at the college. Both of these conclusions are in-
correct, and so we must return this case to the district court
for further proceedings.
I
Because this appeal comes to us from a dismissal for fail-
ure to state a claim, we construe Meade’s complaint in the
light most favorable to her and draw all reasonable infer-
ences in her favor. Park v. Ind. Univ. Sch. of Dentistry, 692 F.3d
828, 830 (7th Cir. 2012). In August 2013, Meade received a
one-page document that set out the schedule of the courses
she was assigned to teach that autumn at Moraine Valley, a
community college in Palos Hills, Illinois. At the top of the
document were the words “EMPLOYMENT AGREEMENT”;
it then listed three classes along with their start and end
No. 14-1217 3
dates (August 19 through December 20), as well as Meade’s
salary for the semester. At the bottom of the page, the words
“employment agreement” appeared again, followed by two
paragraphs of text. The text first noted that the agreement
incorporated “[d]uly established and published Board poli-
cy,” which was to be binding on the signing parties (Meade
and Moraine Valley’s dean). It then stated that the document
was “not a full-time employment contract” and added
“Should the need for indicated service not materialize, this
agreement automatically becomes null and void.” Finally, it
said that the agreement could not “be considered a commit-
ment on the part of the College for a future assignment.”
Shortly after receiving this document, Meade composed
her letter to the League for Innovation in the Community
College (LICC). Under the letterhead of the Moraine Valley
Adjunct Faculty Organization (MVAFO), which she headed,
Meade began by referring to a request the college had made
to Meade and other union leaders to write letters supporting
Moraine Valley’s reapplication for the LICC board. Meade
explained in some detail why she did not wish to do so. She
accused the college of treating adjunct faculty as “a disposa-
ble resource” and “a separate, lower class of people.” As ev-
idence, Meade cited the fact that the administration allocated
more resources to full-time faculty and staff, often leaving
adjuncts “to fend for themselves.” She also noted that ad-
juncts were teaching 60% of Moraine Valley’s classes, mean-
ing that student success rates depended more on adjunct in-
structors than their full-time equivalents. She criticized the
college’s decision to prohibit adjuncts from working on an
hourly basis. As a result, Meade wrote, adjuncts could not
spend extra time tutoring students. This contributed, she
implied, to the problem of high failure rates in developmen-
4 No. 14-1217
tal classes at the college. Elsewhere in the letter, Meade
wrote that the college was underpaying adjuncts, denying
them access to health care, and denying them certain classes
without explanation. All of this, Meade told LICC, “has cre-
ated a chilling effect which affects adjunct performance and
erodes the confidence the idyllic atmosphere and beautiful
buildings and grounds strive to project.”
Meade sent her letter to LICC on August 20, 2013. On
August 22, she received a notice of job termination from An-
drew Duren, Moraine Valley’s executive vice president. Du-
ren told Meade that LICC had sent a copy of her letter to the
college, and the college did not like what it saw. The letter
was “replete with misrepresentations and falsehoods,” Du-
ren wrote, along with “irresponsible rhetoric” that was “dis-
ruptive and not consistent with the best interests of the Col-
lege.” Duren added that the letter was not responsible advo-
cacy on behalf of Meade’s union, but rather “a personal at-
tempt to falsely discredit” the college and undermine its re-
lationship with LICC. Because this behavior did not coincide
with the college’s best interests, Duren wrote, Meade’s job
there was terminated effective immediately. A little over two
weeks later—the record is silent about what happened in the
interim—Meade received an email from the chief of Moraine
Valley’s police force announcing that any future visits she
made to the college campus would be considered criminal
trespass.
Meade responded to these events by suing Moraine Val-
ley. Her complaint set out three theories, two of which con-
cern us here. (The district court dismissed without prejudice
a third claim under Illinois law; Meade has not appealed
from that ruling.) First, Meade alleged that her firing and
No. 14-1217 5
banishment from campus were in retaliation for her exercise
of her First Amendment right to free speech (applicable to
the state through the Fourteenth Amendment). Second, she
contended that her employment contract for Fall 2013 creat-
ed a property interest, which Moraine Valley revoked with-
out due process. As we noted earlier, the district court grant-
ed Moraine Valley’s motion to dismiss for failure to state a
claim, and Meade now appeals.
II
We review a district court’s dismissal for failure to state a
claim under Federal Rule of Civil Procedure 12(b)(6) de novo.
Batson v. Live Nation Entm’t, 746 F.3d 827, 830 (7th Cir. 2014).
Meade begins her appeal with her retaliation claim, and
so do we. Meade’s ability to press this claim depends on
whether the speech that prompted her termination was con-
stitutionally protected. Garcetti v. Ceballos, 547 U.S. 410, 418
(2006). The first part of that inquiry, and the one the district
court found dispositive, asks whether Meade’s speech relat-
ed to a matter of public concern. Id. A teacher such as Meade
cannot be fired for exercising her right of free speech on such
matters. Pickering v. Bd. of Educ. of Twp. High Sch. Dist. 205,
Will Cnty., 391 U.S. 563, 574 (1968). If, however, Meade’s
overall point in writing the letter was to express a purely
personal grievance, then the First Amendment will not help
her. Kristofek v. Vill. of Orland Hills, 712 F.3d 979, 986 (7th Cir.
2013); see also Connick v. Myers, 461 U.S. 138, 147 (1983). The
Supreme Court has defined “public concern” to mean “legit-
imate news interest,” or “a subject of general interest and of
value and concern to the public at the time of publication.”
City of San Diego v. Roe, 543 U.S. 77, 83–84 (2004) (per curi-
am). In deciding whether Meade’s letter fits this description,
6 No. 14-1217
we consider its content, its form, and the context in which it
was written. Connick, 461 U.S. at 147–48. Of these three con-
siderations, content is the most important. Chaklos v. Stevens,
560 F.3d 705, 714 (7th Cir. 2009). We also must take care not
to place undue weight on Meade’s apparent motive in writ-
ing her letter, in particular whether it was personal or not.
Rather, we look at “the overall objective or point” of the letter
to determine whether it discussed matters of public concern.
Kristofek, 712 F.3d at 985. (One side note: although Garcetti
held that a public employee’s statements made pursuant to
her official duties cannot provide the basis for a retaliation
claim, see 547 U.S. at 421, Moraine Valley concedes that
Meade had no employer-imposed duty to write her letter.)
Applying these standards, we have no trouble conclud-
ing that Meade’s letter discussed several matters of public
concern. In fact, the letter contained almost no content per-
sonal to Meade. Although she informed LICC that she had
turned down Moraine Valley’s request to support its reappli-
cation as an LICC board member, she said nothing about her
own experiences or gripes. Rather, she emphasized that she
was writing as the head of a union whose members were
concerned about the way the college treated them as a
group. The letter’s multiple references to the difficulties fac-
ing all Moraine Valley’s adjuncts remove it from the realm of
the purely personal. And Meade is not alone in expressing
concern about the treatment of adjuncts. Colleges and uni-
versities across the country are targets of increasing coverage
and criticism regarding their use of adjunct faculty. See, e.g.,
Sydni Dunn, Colleges Are Slashing Adjuncts’ Hours to Skirt
New Rules on Health-Insurance Eligibility, CHRON. OF HIGHER
EDUC. (Apr. 22, 2013), http://chronicle.com/article/Colleges-
Curb-Adjuncts-Hours/138653; Rachel L. Swarns, Crowded
No. 14-1217 7
Out of Ivory Tower, Adjuncts See a Life Less Lofty, N.Y. Times,
Jan. 20, 2014, at A11; Lewis Wallace, Adjunct Professors De-
mand Inclusion in Health Care Reforms, WBEZ NEWS (Mar. 11,
2013), http://www.wbez.org/news/adjunct-professors-
demand-inclusion-health-care-reforms-106034. (All websites
cited in this opinion were last visited Oct. 29, 2014.)
Meade’s attempt to link the treatment of adjunct faculty
to student performance underscores the public dimension of
her comments. She twice remarked on the effect of ill treat-
ment of adjuncts on student performance and provided evi-
dence for this accusation by reporting the percentage of clas-
ses that adjuncts teach at Moraine Valley. She then observed
that adjuncts’ inability to teach and work on an hourly basis
had compromised their ability to tutor students (at least for
compensation, we assume). It is difficult to see how any part
of this discussion could be considered purely personal to
Meade, or of zero interest to the public. The people who at-
tend Moraine Valley, along with their families and others
who live in the area, no doubt want to know if this practice
poses a threat to student performance.
The district court did not understand the letter this way,
apparently because Meade herself taught as an adjunct and
thus would be affected by any changes in policy. But such an
approach disregards Pickering, 391 U.S. at 571–72, in which
the Supreme Court noted that public employees as a class
may often be the best informed on matters of public concern
related to their jobs. More generally, the district court failed
to consider the broader nature of Meade’s comments. It criti-
cized Meade’s discussion of student interests as cursory—a
flaw that undermined the public quality of the comments, it
thought. Yet we have never held that speech that is partly
8 No. 14-1217
about a matter of public interest but also touches on private
concerns is without constitutional protection. Indeed, we
held the opposite in Craig v. Rich Twp. High Sch. Dist. 227, 736
F.3d 1110 (7th Cir. 2013). There, a high school guidance
counselor’s book of relationship advice contained provoca-
tive, racy sections that would not in isolation be considered
of interest to the public. But we concluded that the book as a
whole covered topics of public concern insofar as it explored
the dynamics of adult relationships; an array of recent arti-
cles showed that the public was indeed interested in the top-
ic. Meade’s letter presents an even stronger case for protec-
tion. Even if the district court were correct that Meade’s ref-
erences to student success were cursory, the remainder of
her letter still discussed the treatment of adjuncts, which eas-
ily qualifies as a topic of public interest. As we said in Craig,
a topic of public concern need not “relate to an issue of ex-
ceptional significance” or “address a topic of great societal
importance.” Id. at 1116.
Moraine Valley’s arguments to the contrary focus in part
on Meade’s motive in writing the letter, but that is beside the
point. As we already have explained, a person’s motive is not
dispositive in the analysis of whether a communication dis-
cusses issues of public concern. In a case such as this one,
where the content of the letter touches on multiple topics in
which the public would be interested, the writer’s motive
(whatever it may be—recall that this case is before us on a
motion to dismiss and the record contains little beyond the
letter itself) is useful only to the extent that it may shed light
on ambiguous statements. Moraine Valley also argues that
Meade’s letter warrants no protection because it was sent
privately. But the college cites no authority for such an un-
qualified proposition. Worse, it fails to acknowledge that
No. 14-1217 9
Meade was transmitting her criticisms to an organization
(the LICC) that includes 800 member institutions and 160
corporate partners. See About the League, LEAGUE FOR
INNOVATION IN THE COMMUNITY COLLEGE, http://www.
league.org/league/about/about_main.htm. That is hardly
confidential. And quite obviously, the letter got around; de-
spite its ostensibly private nature, Moraine Valley had a copy
and fired Meade within two days of her sending it.
The content of Meade’s letter places it squarely among
matters that are of public concern. The district court thus
erred in concluding that her speech was not constitutionally
protected. Because it resolved the case at that point, the court
did not address the other two issues her case raises: whether
the speech was a substantial or motivating factor in the retal-
iatory action, and whether the defendant can show that it
would have taken the same action without the existence of
the protected speech. See Chaklos, 560 F.3d at 711. We think it
best for the district court to have the first look at those issues
on remand.
III
Our conclusion is similar with regard to Meade’s proce-
dural due process claim. In her complaint, Meade alleged
that Moraine Valley should not have fired her without
providing her with notice and an opportunity to contest the
decision. Meade has to satisfy three requirements in order to
show that Moraine Valley violated her right to due process.
The first, and the only one that concerns us here, is demon-
stration of a cognizable property interest. (The other two re-
quirements are that the defendant deprived her of that inter-
est and that it did so in a way that violated due process
standards. Price v. Bd. of Educ. of City of Chicago, 755 F.3d 605,
10 No. 14-1217
607 (7th Cir. 2014).) To demonstrate a cognizable property
interest in her job at Moraine Valley, Meade must be able to
show that she had some legitimate expectation of continued
employment at the college. That expectation can arise
through contractual language limiting the college’s discre-
tion to fire her. See Kodish v. Oakbrook Terrace Fire Prot. Dist.,
604 F.3d 490, 494 (7th Cir. 2010); see also Perry v. Sindermann,
408 U.S. 593, 601 (1972) (a plaintiff can show an expectation
of entitlement to employment through “mutually explicit
understandings” between employee and employer). State
law (here, that of Illinois) defines the extent of Meade’s
property interest in her continued employment. Redd v. No-
lan, 663 F.3d 287, 296 (7th Cir. 2011).
Meade’s one-page employment agreement is a spare
document. It has two components: first, a listing of classes,
with dates, course numbers, and Meade’s pay for the semes-
ter; and second, four sentences of legalistic language that set
forth a series of caveats. At no point does the agreement state
that Meade’s employment could be terminated only for
cause, nor does it say that her employment was at-will and
terminable at any time. The latter would have been unneces-
sary, in light of Illinois’s well-settled rule that “the terms of
employment must provide that termination will only be for
cause or otherwise evince mutually explicit understandings
of continued employment” in order for there to be a proper-
ty interest in employment. Cromwell v. City of Momence, 713
F.3d 361, 364 (7th Cir. 2013) (internal quotation marks omit-
ted). Meade’s agreement, however, contained language that
“otherwise evinces” such a mutual understanding. The
course numbers and corresponding dates define what work
Meade was to do for Moraine Valley, during what specific
period, and for what pay.
No. 14-1217 11
We long ago observed that “[a] term of employment set
by contract has been recognized as a property interest which
the state cannot extinguish without conforming to the dic-
tates of procedural due process.” Hostrop v. Bd. of Junior Coll.
Dist. No. 515, 471 F.2d 488, 494 (7th Cir. 1972). In Illinois,
there is an exception to the presumption that employment is
at-will for work that is of a specified, fixed duration. See, e.g.,
Mitchell v. Jewel Food Stores, 568 N.E.2d 827, 835 (Ill. 1990) (“It
is still the general rule, that an employment relationship
without a fixed duration is terminable at will by either par-
ty.” (internal quotation marks omitted)); Johnson v. George J.
Ball, Inc., 617 N.E.2d 1355, 1358 (Ill. App. 1993) (“In general,
an employment contract is terminable at will by either party
unless the contract itself specifies a different durational
term.”) (citing Duldulao v. St. Mary of Nazareth Hosp. Ctr., 505
N.E.2d 314, 317 (Ill. 1987)). The course schedule on Meade’s
employment agreement provided specific starting and end-
ing dates for her teaching responsibilities and told her what
she would be paid for doing so. This was sufficient to pro-
vide Meade with an expectation of employment at Moraine
Valley during the specified time, and thus a cognizable
property interest in working at the college during that peri-
od. (Notably, the employment agreement cautioned that she
had no guarantee of future employment; thus, she could not
have complained under the Due Process Clause if the college
had simply announced that it was not going to renew her
contract for the spring semester.)
In concluding otherwise, the district court did not ade-
quately take into account Illinois’s rule that employment
with a fixed duration provides an exception to the at-will
presumption. It sought instead to distinguish the facts of
Hostrop from Meade’s while ignoring our recognition there
12 No. 14-1217
that “[a] person is deprived of property if the government
extinguishes his legitimate claim of entitlement to his job,”
471 F.3d at 494, and that “[a] term of employment set by con-
tract has been recognized as a property interest which the
state cannot extinguish without conforming to the dictates of
procedural due process.” Id. The district court also pointed
to our acknowledgment in Cromwell of the at-will presump-
tion for employment in Illinois. But we were not dealing in
Cromwell with employment of fixed length. The employee in
that case relied not on a contract as the source of his expecta-
tion of continued employment but on municipal disciplinary
regulations. See Cromwell, 713 F.3d at 362–63. We also reit-
erated in Cromwell that terms of employment can create a
property interest if they “evince mutually explicit under-
standings of continued employment.” Id. at 364. In this case,
that mutual understanding is present in Meade’s specified
duration of employment.
There was also a collective bargaining agreement (CBA)
between Meade’s union and Moraine Valley. Although it did
not feature in the district court’s decision, the parties devote
some attention on appeal to the question whether the CBA
extinguished any property interest she may have had in her
employment. The CBA was an exhibit to the college’s motion
to dismiss. We may consult it because Meade did not object
to its consideration. It provides that MVAFO members are
at-will employees and that Moraine Valley can terminate
them at its discretion. Moraine Valley argues that Meade was
subject to the CBA, which deemed her an at-will employee
and thus left her without a property interest in her employ-
ment at the college. But Meade had a more specific agree-
ment with the college, and her personal employment agree-
ment says nothing about the CBA. It does incorporate
No. 14-1217 13
“[d]uly established and published Board policy,” but there is
nothing to suggest that this general language included the
CBA. We cannot assume, adversely to Meade, that it did.
The relation between the CBA and Meade’s own employ-
ment agreement is not clear from the pleadings, and so we
cannot conclude at this stage that the CBA blocks Meade’s
claim.
The same is true of other language in Meade’s employ-
ment agreement. Although Meade agreed that she was not a
full-time employee and that she was not entitled to fringe
benefits, doing so did not automatically make her an at-will
employee. Nor did the agreement’s provision permitting the
college to declare the agreement null and void should the
need for Meade’s services “not materialize” have that effect.
This passage might mean, for example, that Moraine Valley
was permitted to cancel the agreement only if an adequate
number of students failed to register for Meade’s classes. It
does not provide a basis to dismiss Meade’s complaint for
failure to state a claim. The same is true of the agreement’s
language providing that it was not a commitment for a fu-
ture assignment; Meade is arguing only that she had a prop-
erty interest in her assignment to work for the Fall 2013 se-
mester.
On a final note, Meade argues in her opening brief that
Moraine Valley stigmatized her by accusing her of dishones-
ty in the letter terminating her employment. This stigma, she
argues, impinged upon her liberty interests and was defama-
tory per se. The college points out that Meade did not men-
tion stigmatization in her complaint, and on that basis it ar-
gues that it could not have been on notice that she intended
to raise it. See Joyce v. Morgan Stanley & Co., Inc., 538 F.3d 797,
14 No. 14-1217
801–02 (7th Cir. 2008) (plaintiff “may not amend the com-
plaint on appeal to state a new claim” (internal quotation
marks omitted)). Yet Meade did assert that she suffered
harm to her reputation. This theory, however, runs squarely
into the Supreme Court’s decision in Paul v. Davis, 424 U.S.
693 (1976), which holds that a generalized interest in reputa-
tion is neither “liberty” nor “property” for purposes of the
Fourteenth Amendment. Id. at 712. Meade contends that we
should follow Second Circuit law to the effect that damaging
information in a public employee’s personnel file will almost
certainly be released to future employers. See Valmonte v.
Bane, 18 F.3d 992, 1000 (2d Cir. 1994). That rule is contrary to
our circuit’s requirement that a plaintiff show publication of
the stigmatizing information. See, e.g., Palka v. Shelton,
623 F.3d 447, 454-55 (7th Cir. 2010). Thus, even taking into
account the fact that complaints need not plead legal theo-
ries, see McDonald v. Household Int’l, Inc., 425 F.3d 424, 427–28
(7th Cir. 2005), Meade has failed to allege a deprivation of a
protected liberty interest.
IV
Although Meade may not pursue a due process claim
based on the deprivation of a liberty interest, she has plead-
ed enough to go forward on the theory that the college de-
prived her of a protected property interest. She has also stat-
ed a claim for retaliation in violation of her First Amend-
ment rights. We therefore REVERSE the district court’s deci-
sion granting Moraine Valley’s motion to dismiss for failure
to state a claim and REMAND for further proceedings con-
sistent with this opinion.