Barrows, Paul v. Wiley, John ( 2007 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-1582
PAUL BARROWS,
Plaintiff-Appellant,
v.
JOHN WILEY and LUOLUO HONG,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 05 C 658—John C. Shabaz, Judge.
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ARGUED SEPTEMBER 27, 2006—DECIDED FEBRUARY 22, 2007
____________
Before POSNER, MANION, and WOOD, Circuit Judges.
MANION, Circuit Judge. Paul Barrows filed a com-
plaint pursuant to 42 U.S.C. § 1983 against his employer,
the University of Wisconsin-Madison (“University”), al-
leging that the University violated his Fourteenth
Amendment right to due process by placing him on
unpaid administrative leave and forcing him to use
various types of leave time to obtain compensation. The
district court granted the University summary judg-
ment. Barrows appeals, and we affirm.
2 No. 06-1582
I.
The University employed Paul Barrows beginning
in 1989. Barrows served in various academic capacities
during his employment with the University. Academic
staff may serve in “indefinite” or “limited” appointments.
An “indefinite appointment is an appointment with
permanent status and for an unlimited term, granted by
the chancellor to a member of the academic staff. Such
an appointment is terminable only for cause under
ch. UWS 11 or for reasons of budget or program under
ch. UWS 12.” Wis. Admin. Code UWS § 10.03(2)(b). A
limited appointment is “a special appointment to a desig-
nated administrative position.” Wis. Admin. Code UWS
§ 15.01(1). A person who serves in a limited appointment
does so at the “pleasure of the authorized official who
made the appointment.” Id. Additionally, an employee
with an indefinite appointment can also hold a limited
appointment. Moreover, the limited appointment does
not impact any rights due an individual holding an in-
definite appointment. Id. Thus, for those serving in a
limited appointment who have also received an indef-
inite appointment, the indefinite appointment remains as
a backup position which they may assume at the expira-
tion of their limited appointment. A “backup” position or
appointment is another name for an indefinite appoint-
ment. In 1997, Barrows received an appointment to a full-
time position in the Provost’s Office (which was des-
ignated as an indefinite backup position). In July 2000,
Barrows accepted a limited appointment as Vice Chancel-
lor for Student Affairs, receiving an annual salary of
$191,749.00 and reporting to John Wiley, Chancellor of
the University. For the next several years, Barrows was
apparently successful in performing his assigned duties.
No. 06-1582 3
On or before November 1, 2004, however, while at an
assembly for a University project, Wiley abruptly asked
Barrows to step down from his position as Vice
Chancellor.1 Wiley directed Barrows to submit a letter
of resignation, which he reluctantly did. In a letter dated
November 1, 2004, Barrows stated that he was stepping
down from his position as Vice Chancellor for Student
Affairs, explaining that “[w]ith recent changes in my
family situation, and the stress those bring, I am propos-
ing to take some personal leave time.” In a response
letter dated November 2, 2004, Wiley accepted Barrows’s
resignation and stated that he would schedule a time to
speak with Barrows, but recommended as a short-term
proposal that Barrows “take leave as necessary to address
[his] personal issues.” Wiley indicated that after his leave,
Barrows could complete a fund-raising project and begin
a feasibility study, and after the completion of the latter
project speak with Provost Spears if he was interested
in “additional roles at UW-Madison.” If he was interested
in such a position, it would qualify as part of his academic
staff backup appointment. Barrows, though, later asserted
in an affidavit signed January 3, 2006, that he did not resign
from his position, but rather that Wiley fired him. In the
meantime, regardless of the subsequent characterization,
Barrows went on leave from November 2004 through
June 20, 2005. During this time, by using vacation leave,
1
There were allegations that Barrows, who was married
with two children, had a relationship with a graduate student,
which prompted Wiley’s request. Additional allegations of
improper behavior prompted Barrows’s paid leave of absence
in June 2005 and a subsequent investigation. These circum-
stances are not pertinent to our deliberations apart from the
fact that they precipitated the actions at issue here.
4 No. 06-1582
sick leave, and leave in his Annual Leave Reserve Account
(“ALRA”), Barrows continued to be compensated at the
annual rate of pay he received as Vice Chancellor for
Student Affairs ($191,749.00). Specifically, during that
time, Barrows received $124,140.18 in gross wages
through the use of 524 hours of sick leave, 186 hours of
vacation time, and 124 hours of ALRA leave. Then, from
June 20, 2005, through June 23, 2005, Barrows worked as a
consultant at the University. On June 23, 2005, Barrows
was placed in his backup position at the Provost’s Office
with an annual salary of $72,881.00. That same day, Bar-
rows was placed on paid administrative leave.
Barrows responded by filing a complaint in the district
court pursuant to 42 U.S.C. § 1983, asserting that he had
a right to immediate placement in his backup position
when he was “terminated” in November 2004. He claimed
that forcing him to use his vacation leave, ALRA leave,
and sick time without notice or opportunity to be heard
violated his right to due process. The district court
granted the defendants’ motion for summary judgment,
concluding that Barrows had failed to establish that
the University caused him economic harm and that Wiley
was entitled to qualified immunity. Barrows appeals.2
2
Barrows also brought a state claim against defendant Luoluo
Hong, Dean of Students at the University of Wisconsin-Madison,
over which the district court declined to exercise supplemental
jurisdiction after it granted Wiley’s motion for summary
judgment on qualified immunity grounds. Because Barrows’s
claim against Hong is not raised in his appeal, we need not
address it.
No. 06-1582 5
II.
A district court’s grant of summary judgment is reviewed
de novo. Gillis v. Litscher, 468 F.3d 488, 492 (7th Cir. 2006).
Barrows’s constitutional claim is premised on a denial of
procedural due process. Specifically, he alleges that he was
denied a property right by being required to use leave time,
whether sick, vacation, or ALRA, between November 2004
and June 20, 2005, as opposed to being immediately placed
in his backup position.
“Procedural due process claims require a two-step
analysis. 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.”
Luellen v. City of E. Chicago, 350 F.3d 604, 613 (7th Cir. 2003)
(quoting Strasburger v. Bd. of Educ., Hardin County Comm.
Unit Sch. Dist. No. 1, 143 F.3d 351, 358 (7th Cir. 1998)). In
other words, the plaintiff must have a protected prop-
erty interest in that which he claims to have been denied
without due process. See Cleveland Bd. of Educ. v. Loudermill,
470 U.S. 532, 538 (1985).
Ascertaining “whether a particular job action against
a public employee implicates a constitutionally pro-
tected property interest is a question of law; ‘[p]roperty
interests are not created by the Constitution, they are
created and their dimensions are defined by existing
rules or understandings that stem from an independent
source such as state law.’ ” Deen v. Darosa, 414 F.3d 731, 734
(7th Cir. 2005) (quoting Loudermill, 470 U.S. at 538). Those
property interests may also be created by contract with
a state entity. Ulichny v. Merton Cmty. Sch. Dist., 249
F.3d 686, 700 (7th Cir. 2001). “A mere opportunity to
acquire property, however, does not itself qualify as a
property interest protected by the Constitution.” Head v.
Chicago Sch. Reform Bd. of Tr., 225 F.3d 794, 802 (7th Cir.
6 No. 06-1582
2000) (citations omitted). Losing the opportunity to ac-
quire property does not constitute a deprivation. Kyle v.
Morton High Sch., 144 F.3d 448, 452 (7th Cir. 1998). Con-
versely, “[p]eople have a legitimate claim of entitlement
to keep that which presently securely belongs to them.
Where state law gives people a benefit and creates a
system of nondiscretionary rules governing revocation or
renewal of that benefit, the recipients have a secure and
durable property right, a legitimate claim of entitlement.”
Cornelius v. LaCroix, 838 F.2d 207, 210 (7th Cir. 1988).
Further, “to recover for a deprivation of a property
interest, [a plaintiff] must show some economic loss from
the [state’s] action, or at least an identifiable impact on
his future income or economic benefits.” Bordelon v. Chicago
Sch. Reform Bd. of Tr., 233 F.3d 524, 530 (7th Cir. 2000).
Purely dignitary and non-pecuniary interests, such as
professional satisfaction, personal relationships, and
reputation, do not constitute property. Id. “[A] job action
that causes no pecuniary loss whatsoever does not impli-
cate the Constitution.” Deen, 414 F.3d at 734 (citations
omitted). See also Swick v. City of Chicago, 11 F.3d 85, 87
(7th Cir. 1993).
The first step of the due process analysis requires us to
consider initially whether Barrows had property interests
in his backup position and leave time, and secondarily
whether he suffered economic harm from a property
deprivation. As the parties seem to agree that Barrows
had a right to assume his backup position, the question
is at what point the University was obligated to place
him in that position. The University of Wisconsin System
Unclassified Personnel Guidelines § 3.02 provides that
“[s]hould a limited appointee with a faculty or aca-
demic staff backup appointment be terminated from the
limited position, the appointee has no minimum notice
No. 06-1582 7
rights. However, the appointee has the right to assume
the backup position without separation in service.” The
Guidelines do not define what constitutes “separation in
service.” Section 3.02 also provides that if a limited ap-
pointee resigns from the limited appointment and re-
quests to return to his permanent appointment, “[s]uch
requests should be honored as soon as possible by the
authorized official. However, in the event a position is
not readily available, or with the agreement of the li-
mited appointee the authorized official may place the
limited appointee on leave of absence until a vacancy
becomes available.” Id.
While it is clear that Barrows had a right to assume his
backup position, that right was not “immediate,” as he
has characterized it, but only “without separation in
service” in the case of termination, or upon his request
to return to his permanent appointment, in the case of
resignation. See Guideline § 3.02. Thus, if Barrows was
terminated, he had “the right to assume the backup
position without separation in service.” UW Personnel
Guideline § 3.02. In this case, however, the record does not
support Barrows’s claim that he was terminated; an
individual who is terminated does not continue to re-
ceive compensation from his employer, as Barrows did at
the annual rate of nearly $200,000. Moreover, there was
no separation between Barrows and the University be-
cause, although he was placed on unpaid administrative
leave, he continued to receive compensation through
the use of his leave time.
As stated above, the Guidelines also afford the right
to placement in a backup position upon the resignation
from a limited appointment and a request for placement
in the backup position. See Guideline § 3.02. There is no
evidence in the record that Barrows requested to be
8 No. 06-1582
placed in his backup position or challenged the Univer-
sity’s failure to immediately place him in his backup
position. Although Barrows asserted in his affidavit that
he sought to return to work, this generalized statement
is insufficient to establish that he sought his backup
position.
Moreover, Barrows failed to assert economic harm
flowing from the University’s decision not to immedi-
ately place him in his backup position. As noted, while
he was on leave Barrows continued to receive compensa-
tion at the Vice Chancellor rate of pay of $191,749.00
annually, as opposed to the rate of pay for his backup
appointment, $72,881.00. Thus, as opposed to an economic
harm, Barrows seemingly benefitted by cashing in on
his various leave categories.
Barrows argues in response that he suffered an eco-
nomic harm by being forced to use his leave time, in-
cluding sick, ALRA, and vacation time. In support of
his position, Barrows cites several University policies
that allow for employees to receive compensation for
unused sick, ALRA, and vacation time after they leave
the University’s employ. Barrows then argues that by
forcing him to use this leave time, rather than placing
him in the backup position, the University deprived him
of the extra compensation he would have received after
he left the backup position.
The problem with Barrows’s argument is that he did
not present sufficient evidence of an economic harm
because he failed to provide an adequate loss calculation.
In his affidavit filed with the district court, Barrows set
forth the number of hours of leave that he used from
November 1, 2004, through June 20, 2005, calculating
each at the hourly rate of his Vice Chancellor position.
No. 06-1582 9
He concluded that he lost a total of $171,589.48 as a result
of the loss of his vacation, ALRA, sick leave, salary, and
supplemental health insurance conversion credit. There
are several deficiencies in this amplified calculation.
First, Barrows did not take into account the salary dif-
ferential between the two positions. The University paid
Barrows for leave at his Vice Chancellor rate of pay,
which was about two and one-half times higher than
the salary paid in the backup position. Barrows failed to
cite to anything in the record that would establish that
upon leaving his backup position, he would be paid for
unused ALRA or vacation leave time at the higher Vice
Chancellor rate of pay, as opposed to at the rate of pay
he would have earned in the backup position. Second,
Barrows failed to account for the time value of money.
Leave pay paid in 2004 and 2005 is worth more than the
same money paid in the future. Third, Barrows did not
take into account the probability that he would have
used some of the leave time at issue before his retire-
ment. Fourth, Barrows did not address or incorporate into
his loss assessment the possibility that he may leave the
University system before retirement at age fifty-five.3
Finally, Barrows failed to incorporate into his analysis
the caps and other restrictions on the usage of various leave
time. See id; UW Personnel Guidelines § 9.03 (provid-
ing, in part, that “[u]nused vacation may be carried over
3
See The University Wisconsin-Madison, Business Services Sick
Leave Conversion Credit Program, http://www.bussvc.wisc.
edu/ecbs/lev-aslcc-shicc-information-chart-uw1048.html (last
visited February 8, 2007) (setting forth requirements for partici-
pation in sick leave conversion program; individuals who
terminate their employment with the University with less than
twenty years of service are not eligible for that program).
10 No. 06-1582
to the next fiscal year for up to one year after the year
in which it accrues. . . . The institution, after sufficient
notice, may require annual pay basis staff to use all accrued
vacation, personal holidays, floating holidays and leave
accumulated in the Annual Leave Reserve Account prior
to retirement, layoff or termination without cause or for-
feit any unused leave balance.”).
The district court recognized these deficiencies, and aptly
stated:
Where plaintiff had provided a competently computed
present value figure of the lost credit toward his
insurance premiums he would then have to show
that figure was greater than the $76,969.75 difference
between the gross wages he received ($124,140.18) from
November 2004 through June 23, 2005 and the gross
wages he would have received in his back up position
($47,170.23). Since plaintiff has not made this showing,
he has not demonstrated that he suffered any economic
harm.
Barrows v. Wiley, No. 05-C-658-S, 2006 WL 167452, at *3
(W.D.Wis., Jan 23, 2006). In light of the aforementioned
deficiencies, Barrows has not established that he suffered
economic harm through the use of his leave time. See
Bordelon, 233 F.3d at 531.
Barrows counters that under Swick v. City of Chicago,
11 F.3d 85 (7th Cir. 1993), the loss of his leave time was
“great economic harm,” and, thus, a property interest.
Barrows’s reliance on Swick is misplaced. In Swick, we
held that a police officer who was placed on involuntary
sick leave without salary, but received the same amount
of money in the form of sick pay, was not denied
due process because he was not suspended and did not
suffer a pecuniary loss in the loss of his badge or other
No. 06-1582 11
authority. Swick, 11 F.3d at 86. In dicta we stated that “[w]e
can imagine a case in which a period of forced inactivity
impeded promotional opportunities or had other indi-
rect effects on post-retirement income.” Id. Not only is
this passage from Swick dicta that is not controlling,
see Atterberry v. Sherman, 453 F.3d 823, 828 (7th Cir. 2006),
but we certainly cannot rely on our imagination to make
a case that the plaintiff did not prove. As emphasized
above, in this case, Barrows failed to present sufficient
evidence of an economic harm on his post-retirement
or post-termination income. Accordingly, the district
court properly granted the University and Wiley sum-
mary judgment.
III.
Barrows failed to establish either a property interest or
an economic harm flowing from the University’s decision
not to immediately place Barrows in his backup position,
and instead having him use his sick, vacation, and ALRA
leave time for compensation. Accordingly, Barrows’s
due process claim fails, and the district court properly
granted the defendants summary judgment. We AFFIRM.
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—2-22-07