Sonnleitner, Harold v. York, Stanley ( 2002 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 01-3966
HAROLD E. SONNLEITNER,
Plaintiff-Appellant,
v.
STANLEY YORK, JOANN O’CONNOR,
KATHLEEN BELLAIRE, KATHY
KARKULA and JOE LEANN,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 00-C-1046—Rudolph T. Randa, Chief Judge.
____________
ARGUED APRIL 11, 2002—DECIDED SEPTEMBER 12, 2002
____________
Before CUDAHY, DIANE P. WOOD, and EVANS, Circuit
Judges.
CUDAHY, Circuit Judge. Harold Sonnleitner is a nurse
at the Winnebago Mental Health Institute, a state-run
psychiatric facility. In 1995, Sonnleitner was charged
with a series of work rule infractions. A predisciplinary
hearing was held, and shortly thereafter he was demoted
to a non-supervisory position. On appeal, the Wisconsin
Personnel Commission determined that there was only
evidence to support one work rule violation and that
a five-day suspension was the appropriate discipline.
After the Institute implemented the suspension but failed
2 No. 01-3966
to reinstate him to a supervisory position, Sonnleitner
commenced an action in Wisconsin state court to enforce
the Commission’s ruling. He also filed a claim for damages,
pursuant to 42 U.S.C. § 1983, against the Institute
and various state officials, alleging the violation of his
procedural due process rights under the Fourteenth Amend-
ment. The defendants then removed this matter to fed-
eral court.
During summary judgment proceedings, Sonnleitner
conceded that his state law claim was barred on proce-
dural grounds due to his failure to comply with a service
of process requirement of Wisconsin law. The district
court subsequently ruled that the individual defendants
were entitled to qualified immunity and that Sonnleitner
could not state a valid claim under § 1983 because he no
longer had a right to be reinstated under state law. Sonn-
leitner now appeals only adverse judgments on the fed-
eral law claims. For the following reasons, we AFFIRM.
I.
The Winnebago Mental Health Institute is located in
Winnebago, Wisconsin, and is operated by the Wisconsin
Department of Health and Family Services (WDHFS).
Sonnleiter has been employed by the Institute since
1980. In 1988, he was promoted to the position of “Nurs-
ing Supervisor 1/Nurse Manager” in charge of the Foren-
sic Behavior Treatment Center. On October 25, 1994,
Sonnleitner was given a three-day suspension for mak-
ing inappropriate sexual remarks about a patient in
the presence of a female co-worker, who found them
offensive, unwelcome and harassing. Sonnleitner appealed
this action to the Wisconsin Personnel Commission.
On December 4, 1995, when the appeal of the first
disciplinary action was still pending, three incidents
occurred which form the basis for Sonnleitner’s eventual
No. 01-3966 3
demotion. First, Sonnleitner placed gum balls in the day-
room of the unit. Although there was no formal policy
on gum balls, this action was considered problematic
because it could interfere with patient discipline and
medication. Second, Sonnleitner permitted a “Level 1”
patient to attend a special luncheon for occupational
therapy patients. Third, Sonnleitner escorted three pa-
tients to a laboratory for DNA testing under a newly
enacted state sexual predator law. Patients had a right
to refuse to take the test, and two of the patients tended
to be very resistant to the test. Sonnleitner briefly ex-
plained the test to the three patients and promised them
a “treat” if they agreed to cooperate. Before returning to
the unit, Sonnleitner took the three patients to the “Big
Canteen” and bought them ice cream. Indulging the
patients in this way allegedly interfered with the Insti-
tute’s behavior treatment program, which allowed privi-
leges commensurate with a patient’s acceptable behavior.
On the following day, these incidents were reported to
Kathleen Bellaire, Director of Nursing. Bellaire subse-
quently began a formal inquiry, which included a written
statement of events from the Program Director who re-
ported the incidents, a fact-finding meeting and the logging
of detailed complaint notes. On December 13, 1995, Sonn-
leitner received three memoranda from Bellaire (each
corresponding to one of the three incidents we have de-
scribed) notifying him he was being charged with viola-
tions of Work Rule #1 and that a predisciplinary meet-
ing would be held in her office on December 18.
According to a formal, contemporaneous summary pre-
pared by Bellaire, four people attended the December 18
predisciplinary meeting: Sonnleitner, Bellaire, Kathy
Karkula (Director of Human Resources) and Dan Leeman
(Management Support). Sonnleitner was given the oppor-
tunity to address each of the three specific charges. How-
ever, Bellaire ultimately found his reasons for his actions
4 No. 01-3966
unpersuasive. After discussing Sonnleitner’s statements,
the summary concludes:
Clearly work rule one was violated when Sonnleitner
bought three patients a treat at the canteen with his
own money. It also appears that his decision making
in these situations is in violation of the program and
set up an untherapeutic atmosphere on the unit where
he is the “Good Guy” and his fellow staff are the “En-
forcers.”
The summary also stated that “[i]t appears that he has
been unable to resolve his negative feelings about the
program director and is purposely thwarting her author-
ity to the detriment of the patients and his own staff.”
Following the meeting, Sonnleitner was immediately
suspended with pay.
During the next several days, Bellaire conducted ad-
ditional fact-finding meetings and interviewed various
other staff members. On December 19 and 20, Bellaire
logged notes of her interviews with three Institute employ-
ees, which generally corroborated her earlier findings
and were, according to her summary notes, partially at
odds with the statements made by Sonnleitner two
days earlier. Another fact-finding meeting was held on
December 28, which was attended by Bellaire, Karkula and
Mary Howard, the Program Director who initially re-
ported the three incidents. In a formal, contemporaneous
summary of this meeting, Bellaire recounted Howard’s
version of the three incidents at issue as examples of
the corrosive effect Sonnleitner was having on her unit.
In addition to the three specific incidents, Howard com-
plained that Sonnleitner’s involvement with activities in
the unit was minimal, that he rarely attended treatment
conferences and, when he did, his participation was mini-
mal, and that he appeared to spend an inordinate amount
of time in the day-room watching television.
No. 01-3966 5
Upon completing her investigation, Bellaire prepared
a disciplinary recommendation report (Bellaire report)
that enumerated four specific work rule violations. The
first three offenses involved the three patient incidents
we have discussed. The report concluded that these three
incidents violated Rule #1, which prohibits all employees
from engaging in the following acts: “Disobedience, insub-
ordination, inattentiveness, negligence, or refusal to carry
out written or verbal assignments, directions, or instruc-
tions.” The fourth offense was based on allegedly inac-
curate and incomplete information that Sonnleitner had
provided during his predisciplinary hearing. The report
concluded that this conduct violated Rule #7, which re-
quires an employee to provide “accurate and complete
information” whenever required to do so by management.
However, below the specification of the four violations,
the Bellaire report included a paragraph that referenced
three potentially more serious examples of misconduct,
which seemed to echo the allegations made by Mary
Howard during the December 28, 1995, fact-finding meet-
ing. According to this paragraph, Sonnleitner had: (a) “neg-
lect[ed] his duties as nursing supervisor to the point
where staff found it necessary to go to the program direc-
tor for information and decisions which they had pre-
viously gone to their nurse manager for”; (b) “failed to
participate in treatment activities on the unit such as
patient review and treatment conferences”; and (c) “spent
much of his time daily in the day room area watching TV.”
The report went on to read, “Many of these performance
issues were addressed in a focussed [sic] PPDR during
1995. The focussed [sic] PPDR also included working
cooperatively with the program director in unit decision
6 No. 01-3966
making[,] which he clearly has not done.”1 The report
then concluded with a recommendation that Sonnleitner
be involuntarily demoted to a staff nurse position.
On January 2, 1996, this report was forwarded to Stanley
York, Director of the Institute, who concurred in the
decision to demote Sonnleitner. The following day, Sonn-
leitner was informed in person of this action. He was
also given a letter from York, which stated that he
was being demoted for “failure to meet supervisor and
administrative duties and violations of DH&SS Work
Rules #1 and #7.” (emphasis added).2 The thrust of Sonn-
1
The PPDR document is the WDHFS’s “Performance Planning
and Development Report,” which is part of a standard annual or
semi-annual evaluation process mandated by Wis. Stat. § 230.37.
After the 1994 incident involving Sonnleitner’s inappropriate
sexual remark, Bellaire recommended a “concentrated PPDR” as
part of the Institute’s response. This document, which presumably
is the same as the “focussed PPDR” mentioned in the Bellaire
report, found that Sonnleitner was meeting all of his job re-
quirements. However, it included the criticism that Sonnleitner
“could offer more comments” during treatment conferences, pa-
tient review, shift reports and staff meetings.
2
During the course of the litigation below, the reasons for
Sonnleitner’s demotion have not been consistently described. For
example, in the interim decision issued by the Wisconsin Person-
nel Commission, the finding of facts directly quote the text from
the demotion letter stating that Sonnleitner was being demoted
for (1) the failure to meet supervisor and administrative require-
ments, which presumably corresponds to the unenumerated para-
graph in the Bellaire report, and (2) the violations of Work Rules
#1 and #7. See Sonnleitner v. Department of Health & Family
Serv., Nos. 94-1055-PC, 96-0010-PC, slip op. at 4, ¶11 (Wis.
Personnel Comm. Feb. 8, 2000). However, in its legal analysis, the
Commission states, “[The WDHFS] demoted [Sonnleitner] to
Nurse Clinician 2 for violating work rules 1 and 7 . . . .” Id. at 13.
(continued...)
No. 01-3966 7
leitner’s procedural due process claim is that he was only
accorded a predisciplinary hearing for the three Rule
#1 violations, but not for the Rule #7 offense or for the
unenumerated charges. Notwithstanding his objections,
Sonnleitner agreed to accept a new position as a unit
staff nurse in order to protect his employment with the
state.
Sonnleitner appealed his demotion to the Wisconsin
Personnel Commission, which consolidated the matter
with the earlier appeal. On February 18, 2000, the Com-
mission issued an interim decision, which affirmed the
three-day suspension for the 1994 incident. However, the
Commission also concluded that Sonnleitner had commit-
ted only one Rule #1 violation (the ice cream incident)
and that there was insufficient evidence that Sonnleitner
had violated Rule #7. Therefore, under a policy of pro-
gressive discipline, the Commission held that a five-day
suspension was an appropriate punishment and that the
demotion to a non-supervisory position was excessive
discipline. Although the Commission’s findings of fact
section directly quoted the three unenumerated offenses
from the Bellaire report, the Commission’s legal analysis
indicated that Sonnleitner’s demotion was predicated
only on the three Rule #1 violations and the one Rule #7
violation. See note 2, supra. Therefore, in practical effect,
the Personnel Commission seemed to adopt the WDHFS’s
2
(...continued)
In contrast, the district court stated that “[t]he alleged Rule 7
violations were: (1) providing inaccurate and incomplete informa-
tion during his predisciplinary meeting, (2) neglecting duties as
nursing supervisor, (3) failing to participate in treatment activi-
ties on the unit . . . and (4) spending much of his time in the day
room area watching television.” See Sonnleitner v. York, No. 00-C-
1046, slip op. at 2 n.2 (E.D. Wis. Oct. 17, 2001). The district
court’s categorization of the rule violations is plainly incorrect.
8 No. 01-3966
position that Sonnleitner had been charged with only
four work rule violations (rather than seven).3
The Personnel Commission’s opinion and order became
final on April 19, 2000. Sonnleitner was informed of this
decision, and he was sent a Notice of Appeal Rights. Upon
remand, the Institute implemented the five-day suspen-
sion but did not reinstate Sonnleitner to his former super-
visory position. Institute officials rejected Sonnleitner’s
request to become a Unit Director, reasoning that his pre-
demotion position of Nurse Manager no longer existed
and that it had no obligation to place him in another
position. In response to an inquiry made by Sonnleitner’s
lawyer, an attorney from the WDHFS sent a letter on
May 3, 2000, stating that the State would be in full com-
pliance with the Commission order by permitting Sonn-
leitner to remain in his current position at the Institute,
where he was actually paid more money than in his
former job. The claim of increased pay was correct; Sonn-
leitner shielded himself from the adverse economic effect of
his demotion by requesting a transfer to the night shift,
where he earned a pay premium.
3
We cannot conclude that the Wisconsin Personnel Commission
failed to analyze the issues squarely before it. Based on our
examination of the record, it is clear that the WDHFS attempted
first to justify the demotion by reference to the three Rule #1
violations, essentially abandoning the Rule #7 violation as a basis
for action. Thus, the WDHFS took the position that Sonnleitner
had been charged only with a total of four violations. Although
Sonnleitner’s brief in the proceeding before the Personnel Com-
mission complained that Bellaire included the unenumerated
charges in her recommendation report for the purpose of obtain-
ing York’s assent to a demotion, this argument has obvious
strategic limitations; insofar as the purpose of this proceeding
was to reverse an improper demotion, Sonnleitner was undoubt-
edly better off challenging the fact rather than the method of
his demotion.
No. 01-3966 9
On June 19, 2000, Sonnleitner commenced an action in
Wisconsin state court to enforce the Commission’s ruling.
He also filed a § 1983 claim for damages against the
WDHFS and four Institute supervisors (individually and
in their official capacities), alleging that he was deprived
of his right to a supervisory position without due process
of law. Defendants subsequently removed this action
to federal court and there filed a motion to dismiss and
for summary judgment.
During the district court proceedings, it soon became
apparent that Sonnleitner’s state law claim had been
extinguished by a procedural error. Under Wisconsin law,
if Sonnleitner wished to appeal the Institute’s interpreta-
tion of the Commission’s order, he had to file and serve
his complaint within 60 days of the failure to comply
with the order. See Wis. Stat. § 230.44(4)(c). Although he
filed on time, he served the complaint on the Chairman of
the Personnel Commission instead of on the proper party,
Joe Leann, the Secretary of the WDHFS. By the time
he corrected the error on July 10, 2000, the time for ser-
vice of process under Wisconsin law had expired. In his
reply brief in the district court, Sonnleitner agreed with
the defendants that Sonnleitner’s state law claim was
barred on procedural grounds. However, he simultane-
ously argued that “Section 1983 provides [the plaintiff]
with all the remedies he is seeking.”
The district court construed Sonnleitner’s statements
in his reply brief as an abandonment of any cause of
action based on state law and, therefore, dismissed the
state law claim. The district court also granted summary
judgment for defendants on the § 1983 claims, ruling
that they were entitled to qualified immunity in their
individual capacity because it was objectively reasonable
for the defendants not to hold predisciplinary hearings
with respect to all the alleged rule infractions. The district
court also granted the WDHFS’s motion to dismiss, ruling
10 No. 01-3966
that, since Sonnleitner has no right to be reinstated un-
der state law, he could not state a federal cause of action
under § 1983. Sonnleitner now appeals only the federal
law claims based on the deprivation of procedural due
process.
II.
A grant of summary judgment is reviewed de novo.
Strasburger v. Bd. of Educ., Hardin County Cmty Unit Sch.
Dist. No. 1, 143 F.3d 351 (7th Cir. 1998). Under Rule 56(c),
summary judgment is proper “if the pleadings, depositions,
answers to interrogatories, and admissions on file, together
with the affidavits, if any, show that there is no genuine
issue as to any material fact and the moving party is
entitled to judgment as a matter of law.” Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986). A grant of a motion to
dismiss is also reviewed de novo. Slaney v. Int’l Amateur
Athletic Fed’n, 244 F.3d 580, 597 (7th Cir. 2001).
This case presents one central issue for review, which
we must first address before turning to two related sub-
sidiary issues. The major issue is whether Sonnleitner
was deprived of his procedural due process rights when
the Institute demoted him without a predisciplinary hear-
ing as to all of the alleged misconduct referred to in the
demotion letter. In the posture of summary judgment, in
which we are required to view all facts, and make
all reasonable inferences, in Sonnleitner’s favor, we believe
that Sonnleitner has adequately alleged a procedural
due process violation. Therefore, we must also consider
(a) whether the individual defendants are entitled to
qualified immunity and (b) whether Sonnleitner’s demo-
tion represents an ongoing violation of state law, such
that his official capacity claim falls within the Ex Parte
Young exception to Eleventh Amendment state immunity.
Each of these issues will be addressed in order.
No. 01-3966 11
A.
In analyzing a procedural due process claim, this court
follows a two-step process: “The first step requires us
to determine whether the plaintiff has been deprived of
a protected interest; the second requires a determination
of what process is due.” Townsend v. Vallas, 256 F.3d 661,
673 (7th Cir. 2001) (quoting Strasburger, 143 F.3d at 358).
Here, it is undisputed that Sonnleitner possessed a property
interest in his supervisory position by virtue of his employ-
ment with the state. See Wis. Stat. § 230.34 (“An employee
with permanent status in class . . . may be removed,
suspended without pay, discharged, reduced in base pay
or demoted only for just cause.”). Moving to the second step
to determine the amount of process due, we note that
Sonnleitner’s complaint does not attack the adequacy of the
full process available to him under Wisconsin law. Indeed,
Sonnleitner was accorded a full evidentiary hearing before
the Wisconsin Personnel Commission. Rather, Sonnleitner
contends that he was entitled to a predisciplinary hearing
as to all the charges contained in the Bellaire report.
As such, he argues that the December 18, 1995, predisci-
plinary meeting fell short of minimum due process re-
quirements because it focused only on the three Rule #1
violations.
To support this claim, Sonnleitner directs us to Cleve-
land Board of Education v. Loudermill, 470 U.S. 523(1985). In Loudermill, the Court held that the procedural
due process rights of two school district employees were
violated when they were fired by their employer without
the benefit of a pre-termination hearing. Id. at 547-48.
However, contrary to Sonnleitner’s argument, Loudermill
does not mandate any hard and fast rules on the specifics
of predisciplinary due process. Rather, the Court adopted an
approach that was both flexible and fact-specific:
12 No. 01-3966
[T]he pre-termination hearing, though necessary, need
not be elaborate. We have pointed out that the formal-
ity and procedural requisites for the hearing can vary,
depending upon the importance of the interests in-
volved and the nature of the subsequent proceedings.
In general, something less than a full evidentiary
hearing is sufficient prior to adverse administrative
action.
Id. at 545 (quotations and citations omitted).
Despite his arguments to the contrary, Loudermill does
not support Sonnleitner’s procedural due process claim.
At the most fundamental level, Loudermill is factually
distinguishable, since the public employees in that case
were discharged without any pre-termination proceed-
ings. Although we do not intend to disparage the personal,
professional and financial hardship of Sonnleitner’s demo-
tion,4 this adverse employment action is in all respects
less onerous than the termination of the two workers
in Loudermill, who were unemployed—and thus un-
paid—for a year or more as they exhausted their adminis-
trative remedies. Id. at 536-37. Also, Sonnleitner was af-
forded some measure of pre-deprivation process. The
question that remains is whether the alleged imperfec-
tions or shortcomings in this process ultimately give rise
to a constitutional claim.
Several years after Loudermill, the Court revisited the
issue of predisciplinary due process in a context closer to
the present case. In Gilbert v. Homar, 520 U.S. 924 (1997),
4
The Commission determined that the Institute had “just cause”
for disciplining Sonnleitner but that the demotion was excessive
punishment. Since the Commission’s decision is not subject to
review by this court, and because it was a product of a full evi-
dentiary hearing, we accept its conclusions as true.
No. 01-3966 13
a police officer employed by a public university was arrested
in a drug raid conducted by state police and charged with
a felony. Effective immediately, he was suspended without
pay. Id. at 927. Although all criminal charges were dis-
missed five days later, the suspension remained in effect
while the university police department conducted its own
investigation. Id.Approximately three weeks later, the officer met with
his police chief to convey his side of the story. The officer
was then informed that the state police had provided
his employer with information that was “very serious
in nature.” Id. What he was not told, however, was that
this information included a report of his alleged confes-
sion on the day of his arrest. Id. As the Court noted, “he
was consequently unable to respond to damaging state-
ments attributed to him in the police report.” Id. A week
later, after the officer had read the state police report, he
was informed that he would be demoted to the position
of groundskeeper and given backpay at the lower rate of
pay assigned to the lower position. The following day, the
officer was given the opportunity before the university
president to respond fully to the charges. The president,
in turn, sustained the charges.
The Court ultimately ruled that failure by the univer-
sity to provide the officer with a pre-deprivation (i.e., pre-
suspension) hearing did not violate procedural due proc-
ess. Id. at 933. In reaching this conclusion, the Court
noted the well-established axiom that “ ‘due process is
flexible and calls for such procedural protections as the
particular situation demands.’ ” Id. at 930 (quoting Mor-
rissey v. Brewer, 408 U.S. 471, 481 (1972)). The Court then
“balanced three distinct factors: ‘First, the private interest
that will be affected by the official action; second, the risk
of an erroneous deprivation of such interest through the
procedures used, and the probable value, if any, of addi-
14 No. 01-3966
tional or substitute procedural safeguards; and finally, the
Government’s interest.’ ” Id. at 932 (quoting Mathews v.
Eldridge, 424 U.S. 319, 335 (1976)); see also Alexander v.
Wis. Dept. of Health & Family Serv., 263 F.3d 673, 688 (7th
Cir. 2001) (citing and applying three-part balancing test);
Porter v. DiBlasio, 93 F.3d 301, 306-07 (7th Cir. 1996)
(same); Colon v. Schneider, 899 F.2d 660, 670 (7th Cir.
1990) (same). This three-part framework is often referred to
as the Mathews balancing test. See, e.g., Dusenbery v.
United States, 122 S.Ct. 694, 699 (2002); Porter, 93 F.3d at
306; DeVito v. Chicago Park Dist., 972 F.2d 851, 855 (7th
Cir. 1992).
Under the first part of the Mathews balancing test,
which weighed the private interests of the officer, the
Court distinguished Loudermill by noting that “the [tem-
porary] lost income is relatively insubstantial (compared
with termination),” and that other fringe benefits such
as health and life insurance were not placed in jeopardy.
520 U.S. at 932. The Court then reasoned that the of-
ficer’s private interests were outweighed by the univer-
sity’s interest in removing from a position of high visibility
and trust a campus police officer who had been charged
with a felony. Id. Finally, in considering the risk of error
and the appropriateness of additional or alternative safe-
guards, the Court noted that the purpose of any pre-
suspension hearing would have been “to assure that
there are reasonable grounds to support the suspension
without pay.” Id. at 933. However, this additional step
was found to be unnecessary because reasonable grounds
“had already been assured by the arrest and the filing of
the charges” and that these charges emanated from “an
independent third party.” Id. at 933-34.
However, in Gilbert, the analysis of the officer’s pre-
suspension procedural due process rights did not end
the constitutional inquiry. The Court ultimately remanded
the case to the court of appeals to determine whether the
No. 01-3966 15
officer had been accorded a sufficiently prompt post-sus-
pension hearing. Id. at 935-36. This decision was based
in part on the fact that charges by the state police had
been dropped but the suspension remained in effect;
therefore, “the risk of erroneous deprivation increased
substantially.” Id. at 935.
Gilbert is relevant to the present case for at least
two reasons. First, it clarifies that the Mathews three-part
balancing test is the proper standard for analyzing a
procedural due process claim of a government employee
who has a property interest in his or her job and sub-
sequently suffers an adverse employment action, such as
a suspension or a demotion. Second, Gilbert illustrates
the point that minimum procedural due process require-
ments ultimately turn on a highly fact-specific inquiry.
When we apply the Mathews balancing test to the
unusual circumstances of Sonnleitner’s demotion, we can-
not conclude with confidence that he was afforded ade-
quate pre-deprivation process. In terms of the private
interests affected by the demotion decision, we acknowl-
edge that Sonnleitner’s case may at first glance appear to
be less pressing than the officer in Gilbert, who was sus-
pended for several weeks without pay (and thus placed
in a more precarious financial situation). However, the
only post-disciplinary process available to Sonnleitner
was his appeal to the Wisconsin Personnel Commission.
Sonnleitner notified the Commission of his intent to ap-
peal on January 25, 1996, and a hearing was eventually
convened on September 15-17, 1998. This proceeding,
which occurred more than two and one-half years after the
demotion, was Sonnleitner’s first opportunity to directly
address all of the allegations against him.
Although our inspection of the record strongly sug-
gests that settlement negotiations were substantially
16 No. 01-3966
responsible for this prolonged delay,5 there remains con-
siderable uncertainty over whether this type of admin-
istrative appeal could have been addressed quickly enough
to satisfy minimum due process requirements. In Gilbert,
the Court noted that the “length” of the deprivation is
relevant in determining what process is due. Id. at 932(quoting Logan v. Zimmerman Brush Co., 455 U.S. 422,
434 (1982)). The Court then went on to rule that the
university was not required to convene a predisciplinary
hearing before suspending the officer without pay “[s]o
long as the suspended employee received a sufficiently
prompt postsuspension hearing.” Id. (emphasis added).
The Mathews balancing test next requires us to con-
sider the competing interests of the state. Here, we readily
acknowledge substantial factors weighing in favor of the
WDHFS. Specifically, we note that Kathleen Bellaire, as
Director of Nursing, was charged with the smooth function-
ing of Sonnleitner’s unit, including the maintenance of
5
At some point after filing his appeal, Sonnleitner retained a
lawyer. Shortly thereafter, Sonnleitner filed another complaint
with the Wisconsin Personnel Commission alleging that his
demotion was motivated by sex and handicap discrimination. (The
nature of the Sonnleitner’s alleged handicap is not part of the
record.) After some initial and unproductive settlement negotia-
tions, a pre-hearing conference with the Commission was held
via telephone on August 1, 1996, and a hearing date was then
set for December 10-12, 1996. However, this hearing was post-
poned in light of seemingly productive settlement talks. After
the parties failed to reach a settlement, and status reports were
filed with the Commission, a new hearing was set for March 3-5,
1998. But once again, the hearing was postponed to pursue
further (unsuccessful) settlement negotiations. Sonnleitner later
withdrew the employment discrimination charge. Sonnleitner’s
hearing before the Wisconsin Personnel Commission, which was
his only post-disciplinary process, finally took place on September
15-17, 1998.
No. 01-3966 17
a highly structured program of patient therapy and treat-
ment. Although Sonnleitner’s three Rule #1 violations
may involve seemingly minor misconduct with patients,
the substance of the rule prohibits “[d]isobedience, insub-
ordination, inattentiveness, negligence, or refusal to carry
out written or verbal assignments, directions, or instruc-
tions.” Insofar as Bellaire’s lengthy investigation, includ-
ing the predisciplinary meeting with Sonnleitner, led
her to the conclusion that Sonnleitner’s conduct made
him unfit as a supervisor, she was arguably justified in
recommending his demotion. Yet, Bellaire was not autho-
rized to make this decision by herself. Rather, this type
of disciplinary action ultimately required the approval of
the Institute director, Stanley York.
As we turn to the third Mathews balancing factor, which
is the risk of erroneous deprivation and the possible value
of additional procedural safeguards, the WDHFS’s case
falters. After careful review of the record, we believe
Sonnleitner makes a plausible argument when he asserts
that York would not have approved of the demotion but
for the additional allegations contained in the Bellaire
report. Bellaire completed this document on January 2,
1996, and immediately forwarded it to York. The following
day, York wrote the demotion letter, which specifically
states, “This action has been taken due to your failure
to meet supervisor and administrative duties and viola-
tion of DH&SS Work Rules #1 and #7” (emphasis added).
Despite the WDHFS’s position in subsequent litigation
that the reason for Sonnleitner’s demotion was the four
enumerated charges, on the day that York actually made
this decision, he appeared to be relying on something more.
Our inspection of the record suggests that the alleged
“failure to meet supervisor and administrative duties” is
most likely a reference to the three unenumerated charges
in the Bellaire report, which alleged that Sonnleitner
had (a) caused disruption to the nursing unit by neglecting
18 No. 01-3966
his nurse supervisory duties, (b) failed to participate in
patient review and treatment conferences, and (c) spent
much of his time watching television.
As previously noted, the basis for the three unenumerated
charges appears to be comments made by Mary Howard
during a December 28, 1995, fact-finding meeting—ten days
after Sonnleitner’s predisciplinary meeting. With only a
few exceptions, such as prison discipline cases, “[e]x parte
presentation of evidence denies due process.” Swank v.
Smart, 898 F.2d 1247, 1254 (7th Cir. 1990) (citing Greene v.
McElroy, 360 U.S. 474, 496-97 (1959)). When we compare
Bellaire’s formal, contemporaneous summary of this
meeting with the text of the report she filed only five days
later, it appears that Bellaire essentially paraphrased
Howard’s allegations and inserted them directly into the
report.6 From the record, it appears that York may have
relied upon the more serious unenumerated charges when
approving Sonnleitner’s demotion. If Sonnleitner had
first been given an opportunity to defend himself against
these more serious allegations, it is at least plausible
that York would have found the evidence inconclu-
sive and therefore withheld his approval of the demotion
decision. The veracity of the three unenumerated viola-
tions, it is important to note, was never tested by ad-
6
Compare, e.g., summary of December 18, 1996, meeting (“How-
ard describes Sonnleitner’s involvement on the unit as minimal.
She stated he rarely attends treatment conferences and when he
does attend his participation is minimal, or he leaves before the
meeting is over. When asked how Sonnleitner spends his time
Howard stated he works on the APS sheets a lot is also frequently
in the dayroom where she believes he is watching TV.”), with
Bellaire report (“[Sonnleitner] has failed to participate in treat-
ment activities on the unit such as patient review and treatment
conferences. Sonnleitner reportedly spent much of his time daily
in the day room watching TV.”).
No. 01-3966 19
versarial proceedings. In the subsequent litigation, the
WDHFS effectively disavowed them as the actual basis
for the demotion. Further, it also appears that Bellaire’s
assessment of Sonnleitner’s work rule violations (i.e., the
four enumerated charges) may have been significantly
exaggerated, since the Wisconsin Personnel Commission
ultimately determined that Sonnleitner was guilty only
of one Rule #1 violation.
The upshot of this lengthy analysis is that, risk of er-
roneous deprivation of Sonnleitner’s supervisory position
could have been significantly reduced if the Institute had
taken the relatively modest step of providing Sonnleitner
with a predisciplinary meeting on the Rule #7 violation
and the three unenumerated charges contained in the
Bellaire report. Therefore, we believe there remains a
genuine issue of material fact (a) whether York relied
on the more serious charges contained in the Bellaire
report when he approved Sonnleitner’s demotion, and
(b) whether an administrative appeal before the Wisconsin
Personnel Commission, without the delay of lengthy
settlement negotiations, could have been addressed quickly
enough to satisfy the minimum requirements of due proc-
ess.
However, before we can consider the remaining issues
of qualified immunity and the viability of Sonnleitner’s
official capacity claims, we must briefly address the
WDHFS’s misguided contention that Sonnleitner has not
suffered a legally cognizable deprivation of a protected
property interest. Relying on our decision in Bordelon v.
Chicago School Reform Board of Trustees, 233 F.3d 524(7th Cir. 2000), the WDHFS has vigorously pressed the
argument that Sonnleitner’s procedural due process claim
must fail because Sonnleitner, by virtue of a pay premium
he receives as a staff nurse on the night shift, has suffered
no economic loss. In Bordelon, we affirmed summary
judgment for the Chicago school district because one of
20 No. 01-3966
its principals, who had been transferred to a purportedly
less desirable administrative position, “failed to offer
evidence sufficient to allow a jury to find any direct or
indirect economic harm as the result of the Board’s con-
duct.” Id. at 531.
The WDHFS’s reliance on Bordelon is misplaced for
at least two reasons. First, it is undisputed that Sonn-
leitner’s demotion involved a reduction in his base pay. The
fact that Sonnleitner offset this loss by taking a staff
position with less desirable hours (hence the pay premium)
is completely irrelevant to the underlying analysis. Second,
this court has held that “the loss of position that impedes
future job opportunities or has other indirect effects on
future income can inflict an actionable deprivation of
property.” Head v. Chicago Sch. Reform Bd. of Trustees, 225
F.3d 794, 803 (7th Cir. 2000) (citing Swick v. City of
Chicago, 11 F.3d 85, 86 (7th Cir. 1993)). In this case, it is
reasonable to assume that Sonnleitner’s demotion to a non-
supervisory position would adversely affect his upward
mobility in the future, and thus his income.
B.
The next issue presented for review is whether the
individual defendants are entitled to qualified immunity.
In order to proceed with his individual capacity claims
against Bellaire, York, Karkula and Joann O’Connor,7
Sonnleitner must (1) adequately allege the violation of a
constitutional right, and (2) that right must be clearly
established at the time of the alleged violation, so that a
7
Stanley York has retired as the director of the Institute, and
this position is now held by Joann O’Connor. Sonnleitner claims
that O’Connor continues to violate his constitutional rights by her
refusal to reinstate him as a supervisor.
No. 01-3966 21
reasonable public official would have known that his
conduct was unlawful. See Delgado v. Jones, 282 F.3d 511,
515-16 (7th Cir. 2002) (citing Harlow v. Fitzgerald, 457 U.S.
800, 818-19 (1982)).
Under the first prong of this inquiry, we agree with
Sonnleitner that the Institute may have violated his pro-
cedural due process rights by failing to accord him a pre-
disciplinary hearing on the unenumerated (i.e., the more
serious) charges contained in the Bellaire report. How-
ever, under the second prong of the qualified immunity
analysis, Sonnleitner has failed to establish that this
right was clearly established at the time of the alleged
violation. Although Sonnleitner need not offer up a fed-
eral decision which precisely mirrors the facts of this case,
at a minimum he must point to a closely analogous case
decided prior to the challenged conduct. See Lawhe v.
Simpson, 16 F.3d 1475, 1483 (7th Cir. 1994). Sonnleitner
contends that the Supreme Court’s decision in Loudermill
clearly established his right to more exhaustive pre-disci-
plinary proceedings. However, as discussed earlier, Louder-
mill involved the termination of two public employees with-
out any pre-termination proceedings, and is therefore fac-
tually distinguishable from this case. Since Sonnleitner
bears the burden of establishing the existence of a clear-
ly established constitutional right, see Rakovich v. Wade,
850 F.2d 1180, 1209 (7th Cir. 1988) (en banc); accord
Delgado, 282 F.3d at 516; Forman v. Richmond Police Dep’t,
104 F.3d 950, 957-58 (7th Cir. 1997), and he has failed
to cite any additional authorities, we conclude the individ-
ual defendants are entitled to qualified immunity.8
8
The district court upheld the qualified immunity of the defen-
dants because it found that the decision not to convene additional
predisciplinary hearings was objectively reasonable. However, “we
may affirm the judgment of the district court on the basis of any
(continued...)
22 No. 01-3966
C.
The last issue presented for review is whether Sonn-
leitner can maintain a lawsuit against the defendants
in their official capacity in order to obtain a federal injunc-
tion mandating his reinstatement to a supervisory posi-
tion. The Eleventh Amendment provides that “[t]he Ju-
dicial power of the United States shall not be construed
to extend to any suit in law or equity, commenced or
prosecuted against one of the United States by Citizens
of another State, or by Citizens of any Foreign State.” U.S.
Const., amend. XI. As the defendants correctly point out,
the Eleventh Amendment generally bars federal jurisdic-
tion over lawsuits against state officials acting in their
official capacities when the state is the real party at
interest. See MCI Telecomm. Corp. v. Illinois Bell Tel. Co.,
222 F.3d 323, 337 (7th Cir. 2000) (citing Pennhurst State
Sch. & Hosp. v. Halderman, 465 U.S. 89, 101-02 (1984)).
However, there are three specific exceptions to Eleventh
Amendment state immunity to lawsuits in federal court:
(1) “Congress has abrogated the state’s immunity from
suit through an unequivocal expression of its intent to do
so through a valid exercise of its power”; (2) a state “has
properly waived its immunity and consented to suit
in federal court”; and (3) the plaintiff “seek[s] prospective
equitable relief for ongoing violations of federal law . . .
under the Ex Parte Young doctrine.” Marie O. v. Edgar,
131 F.3d 610, 614-15 (7th Cir. 1997) (citing Seminole Tribe
8
(...continued)
ground supported by the record.” Taylor v. Canteen Corp., 69 F.3d
773, 784 (7th Cir. 1995); Flynn v. Sandahl, 58 F.3d 283, 289
(7th Cir. 1995) (same). In this case, we affirm the qualified im-
munity ruling because Sonnleitner has failed to carry the burden
of demonstrating that the defendants’ conduct violated a clearly
established constitutional right.
No. 01-3966 23
of Fla. v. Florida, 517 U.S. 44, 55-56 (1996), and Ex Parte
Young, 209 U.S. 123, 159-60 (1908)).
The defendants have clearly raised the shield of Elev-
enth Amendment immunity. Unfortunately, Sonnleitner
has failed to respond to their arguments. Therefore, with
respect to the first two exceptions to state immunity,
we have no basis to conclude that either Congress has
abrogated Wisconsin’s Eleventh Amendment immunity
or that the state of Wisconsin has authorized this lawsuit
through an act of waiver or consent. Moreover, we flatly
refuse to undertake our own examination of Wisconsin
and federal law to see if such a basis exists. See United
States v. Lanzotti, 205 F.3d 951, 957 (7th Cir. 2000) (“It
is not this court’s responsibility to research and construct
the parties’ arguments.”); accord Spath v. Hayes Wheels
Int’l-Ind., Inc., 211 F.3d 392, 397 (7th Cir. 2000).
Turning to the third exception to state immunity,
Sonnleitner’s complaint and reply brief have arguably
made allegations that are at least consistent with the
doctrine of Ex Parte Young.9 Yet, even if this argument
is fully developed, we believe that it ultimately fails. In
Verizon Maryland Inc. v. Public Service Commission of
Maryland, 122 S.Ct. 1753 (2002), the Supreme Court
held that the Ex Parte Young exception requires a “straight-
forward inquiry into whether the complaint alleges
an ongoing violation of federal law and seeks relief properly
characterized as prospective.” Id. at 1760 (quotations omit-
ted). Sonnleitner’s request for reinstatement to a super-
9
For example, Sonnleitner’s complaint asserts that the defen-
dants, in their official capacity, are “depriving him of his right
to return to a position as supervisor.” Similarly, in his reply brief,
Sonnleitner contends that injunctive relief should be granted in
this case because “O’Connor and Leann are continuing the vio-
lation of [Sonnleitner’s] right to be a supervisor.”
24 No. 01-3966
visory position can certainly be characterized as prospec-
tive relief, but we do not believe that the underlying
procedural due process claim can be reasonably construed
as “ongoing.”
Sonnleitner contends that he was improperly demoted
without a predisciplinary hearing on all of the charges
contained in the Bellaire report. Assuming arguendo that
Sonnleitner’s constitutional rights have been violated,10
the violation was not the demotion as such, but, instead,
the fact that the demotion occurred without an adequate
opportunity to be heard, either through an additional pre-
disciplinary hearing or a sufficiently prompt post-disciplin-
ary hearing. Cf. Zinermon v. Burch, 494 U.S. 113, 126
(1990) (“The constitutional violation actionable under
§ 1983 is not complete when the deprivation occurs; it is
not complete unless and until the State fails to provide
due process.”); Porter, 93 F.3d at 305 (“The presumption
is that an individual is entitled to notice and an oppor-
tunity for a hearing prior to the state’s permanent dep-
rivation of his property interest.” (emphasis added)). Had
Sonnleitner brought this lawsuit during the pendency of
his appeal before the Wisconsin Personnel Commission,
the proper remedy, depending upon the timing, would
10
The issue whether Sonnleitner was in fact denied procedural
due process is a matter that cannot be resolved in the current
summary judgment posture. It remains an issue of material fact
whether Stanley York actually relied on the more serious un-
enumerated charges contained in the Bellaire report. Similarly,
it is unclear whether the prolonged delay in convening the post-
disciplinary hearing before the Wisconsin Personnel Commission
was primarily attributable to attempts by Sonnleitner to obtain
a favorable settlement. Although we suspect that the administra-
tive review process available in this case was not “sufficiently
prompt” to satisfy the minimum requirements of procedural due
process, Gilbert, 520 U.S. at 932, that issue ultimately turns
on additional facts that are not in the record.
No. 01-3966 25
have been either a prompt post-disciplinary hearing or
reinstatement pending an opportunity to be heard. How-
ever, Sonnleitner was eventually given an opportunity
to tell his side of the story, and the Personnel Commis-
sion found it to be persuasive. The Commission deter-
mined that only one of the charges had merit and that
Sonnleitner’s demotion violated a state policy of progres-
sive discipline. Although the WDHFS arguably failed to
comply with the Commission’s decision, Wisconsin law
permitted Sonnleitner to enforce this decision through
a judicial order. See Wis. Stat. § 230.44(4)(c). But for
Sonnleitner’s failure to timely serve the Secretary of the
WDHFS, it appears likely that this process would have
restored him to a supervisory position.
The upshot of this analysis is that the allegations
against the defendants in their official capacities refer to,
at most, a past rather than an ongoing violation of fed-
eral law. Because these allegations do not fit within the
narrow exception of Ex Parte Young, the official capacity
claims are barred by the Eleventh Amendment.
III.
In summary, Sonnleitner’s Fourteenth Amendment
right to procedural due process may have been violated
when he was demoted to a staff level nursing position
without first being given an opportunity to address the
more serious allegations in the Bellaire report. Resolu-
tion of this question ultimately hinges on material facts
that are not in the record. However, remand for a trial
on the merits is unnecessary. The individual defendants
are entitled to qualified immunity because Sonnleitner
has failed to carry his burden of establishing the exis-
tence of a clearly established constitutional right to a
pre-demotion hearing as to all of the relevant charges.
Sonnleitner’s official capacity claims also fail because
26 No. 01-3966
he has failed to allege an ongoing violation of federal law.
Accordingly, we AFFIRM the judgment of the district court.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-97-C-006—9-12-02