Burrell, William D. v. City of Mattoon , 378 F.3d 642 ( 2004 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-3930
WILLIAM D. BURRELL,
Plaintiff-Appellant,
v.
CITY OF MATTOON; DAVID CARTER, Mayor
of the City of Mattoon; HAROLD D. GAMBILL,
MARK DONNELL, JERROLD HESSE, and DAVID
R. SCHILLING, City Council Members of the
City of Mattoon,
Defendants-Appellees.
____________
Appeal from the United States District Court for the
Central District of Illinois.
No. 01 C 2270—Harold A. Baker, Judge.
____________
ARGUED MAY 18, 2004—DECIDED AUGUST 6, 2004
____________
Before FLAUM, Chief Judge, and KANNE and ROVNER,
Circuit Judges.
KANNE, Circuit Judge. William D. Burrell served as the
city clerk for Mattoon, Illinois from July 1994 until April
30, 2001, when he was allegedly terminated from the posi-
tion by the newly elected mayor and incoming city council.
The new mayor and city council had not taken office at the
time of Burrell’s alleged firing; yet, Burrell sued the City,
2 No. 03-3930
the mayor-elect, and incoming city council members in
federal court, claiming that they deprived him of his job
without due process of law in violation of 42 U.S.C. § 1983.
The district court granted summary judgment in favor of the
defendants on Burrell’s § 1983 claim and on his supplemen-
tal state law claims. We affirm.
I. History
The mayor of Mattoon, with the city council’s approval,
appoints the city clerk. See 65 Ill. Comp. Stat. 5/3.1-30-
5(a)(11) (vesting power in a municipality’s mayor, with the
advice and consent of the city council, to appoint “officers
necessary to carry into effect the powers conferred upon
municipalities”). The appointment is for a fixed term, “but
the term of office . . . shall not exceed that of the mayor . . . .”
65 Ill. Comp. Stat. 5/3.1-30-5(c). According to Mattoon city
ordinance, the city clerk is not only an officer, but is also an
employee of the city, and as such is subject to the City of
Mattoon Personnel Code. The City of Mattoon Personnel
Code requires that city employees be subject to progressive
discipline prior to termination.1
The City of Mattoon municipal elections held in April
2001 resulted in a complete turnover in all city council seats
and the office of mayor. Although the new mayor and city
council members were sworn in sometime after the election
in a private ceremony, city ordinance dictated that they did
not officially begin their terms in office until their inaugu-
ration, which would take place at the first regular or special
meeting of the city council in the month of May following
1
The defendants do not dispute Burrell’s unsupported character-
ization of the Personnel Code (no copy of the pertinent section(s)
of the Code was provided by either party), so we will presume it
is accurate.
No. 03-3930 3
the general election. Concomitantly, the outgoing mayor’s
and city council members’ terms would end upon their
successors’ inauguration at the May meeting. It is undis-
puted that the first regular or special meeting of the city
council in the month of May after the general election took
place the evening of May 1, 2001, whereupon the incoming
mayor and city council began their terms in office immedi-
ately after their inauguration and the outgoing officials’
terms ended.
Burrell had been appointed to his position by the outgoing
mayor, Wanda Ferguson. According to statute, his term in
office coterminated with hers on May 1, 2001. It was
anticipated that Burrell would be reappointed to his city
clerk position by the incoming mayor and city council, and
a resolution to that effect had been prepared for presenta-
tion at the May 1, 2001 city council meeting. To Burrell’s
great shock and consternation, on April 30, 2001, the
mayor-elect, David Carter, and the incoming council
members, Harold D. Gambill, Mark Donnell, Jerrold Hesse
and David R. Schilling (collectively, the “individual defen-
dants”), met with Burrell and told him that he would not be
reappointed to the city clerk position the following evening
because of perceived performance problems. It is undisputed
that prior to this conference with the incoming officials,
Burrell had not received any warnings or other progressive
discipline indicating that his performance was deficient.
Immediately after the meeting, Burrell told co-workers he
had been fired, turned in his keys and cell phone, and left
the building. True to their word, the individual defendants
appointed Burrell’s assistant, Susan O’Brien, as city clerk
at the May 1, 2001 meeting, in place of Burrell.
Burrell does not claim that he was entitled to reappoint-
ment to the city clerk position on May 1, 2001. He does
claim that he was entitled to serve out the remainder of his
term, that is, until the incoming mayor and city council
were inaugurated on May 1, 2001. He argues that the City
4 No. 03-3930
and individual defendants terminated him on April 30, 2001
without following the progressive discipline procedure
required by the City of Mattoon Personnel Code. Because he
was forced out of office one day prematurely, he claims,
among other damages, that he was unable to convert his
pension, resulting in hundreds of thousands of dollars of
loss.2
Burrell filed his suit in federal district court against the
City and the individual defendants alleging, under 42
U.S.C. § 1983, that they violated the federal constitution by
depriving him of his job without due process of law. He also
brought supplemental state law claims for violation of
Illinois’s Open Meetings Act, 5 Ill. Comp. Stat. 120 et seq.;
for breach of contract; for interference with a prospective
contractual relationship and/or with a prospective economic
advantage; and for conspiracy relating to all of the above.
The district court dismissed Burrell’s claim based on the
Open Meetings Act and the portions of the conspiracy count
relating to the alleged Open Meetings Act violation. Burrell
does not appeal that ruling.
The court subsequently dismissed the remainder of Burrell’s
claims upon the defendants’ motion for summary judgment.
The judge found that Burrell, who rested entirely on his
2
In his briefs to this court and at oral argument, Burrell rep-
resented that the thrust of his lawsuit is recovery of lost pension
rights. According to Burrell, he could only convert his pension if
he was a current employee at the time he made the request. He
argues that his unexpected and immediate termination by the
defendants resulted in the sacrifice of hundreds of thousands of
dollars in accrued pension benefits. Although, if true, this result
strikes the panel as bizarre and unfair, there is nothing in the rec-
ord supporting Burrell’s assertions that the City of Mattoon or
State of Illinois maintained such a policy. In any event, we need
not sort out this issue, as we find dismissal of Burrell’s lawsuit on
the merits appropriate.
No. 03-3930 5
pleadings as to key disputed facts, failed to advance any evi-
dence tending to show that the City or individual defendants
prevented him from serving out the remainder of his term.
Because Burrell could not support his contention that he
suffered any actual deprivation of a constitutional right—
that is, the loss of his job without due process—the judge
granted summary judgment on the § 1983 claim. Relatedly,
the court determined Burrell could not establish a breach of
contract because nothing the defendants said or did pre-
vented Burrell from working his last day in office. The
judge also quickly dispatched Burrell’s claims of tortious
interference with a prospective contractual relationship
and/or tortious interference with a prospective economic
advantage for failure to meet necessary elements under
Illinois law. Finally, because all of the claims upon which
the conspiracy count was predicated failed, the judge dis-
missed the conspiracy count as well.
II. Analysis
We review the district court’s grant of summary judgment
de novo, construing all facts in favor of the non-moving
party. Smith v. Dunn, 368 F.3d 705, 708 (7th Cir. 2004).
Summary judgment is appropriate where “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 that the mov-
ing party is entitled to a judgment as a matter of law.” Fed.
R. Civ. P. 56(c).
We note, as did the district judge, that where the party
seeking summary judgment has supported its recitation of
facts with citations to depositions and other record mater-
ials, “an adverse party may not rest upon the mere allegations
or denials of the adverse party’s pleading, but the adverse
party’s response, by affidavits or as otherwise provided in
this rule, must set forth specific facts showing that there is
6 No. 03-3930
a genuine issue for trial.” Fed.R.Civ.P. 56(e); see also Celotex
Corp. v. Catrett, 477 U.S. 317, 324 (1986) (“Rule 56(e) per-
mits a proper summary judgment motion to be opposed by
any of the kinds of evidentiary materials listed in Rule 56(c)
[depositions, answers to interrogatories, admissions on file,
and affidavits], except the mere pleadings themselves . . . .”
(emphasis added)).
A. 42 U.S.C. § 1983Section 1983 provides:
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State . . . subjects, or
causes to be subjected, any citizen of the United States . . .
to the deprivation of any rights, privileges, or immunities
secured by the Constitution and laws, shall be liable to the
party injured in an action at law, suit in equity, or other
proper proceeding for redress . . . .
42 U.S.C. § 1983. The two key elements establishing a vio-
lation of § 1983 are (1) a deprivation of a federally guaran-
teed right, (2) perpetrated under color of state law. Id.; see
also Adickes v. S.H. Kress & Co., 398 U.S. 144, 150 (1970);
Honaker v. Smith, 256 F.3d 477, 484 (7th Cir. 2001).
1. Deprivation of a federally guaranteed right
The district judge determined that none of the defendants
deprived Burrell of a federally guaranteed right, and we
agree. Burrell alleged that the defendants deprived him of
his right to due process, in the form of progressive discipline
required by the City of Mattoon Personnel Code, prior to
losing his job as city clerk. “[T]he existence of a property
interest in public employment cognizable under the due
process clause depends on whether state law has affirma-
tively created an expectation that a particular employment
No. 03-3930 7
relationship will continue unless certain defined events
occur.” Confederation of Police v. City of Chicago, 547 F.2d
375, 376 (7th Cir. 1977), quoted in Hudson v. City of Chicago,
No. 03-2690, 2004 U.S. App. LEXIS 13809, *11 (7th Cir. July
6, 2004). We conclude, as did the district judge, that Burrell
had a property interest in completing his appointment as city
clerk, which could only be taken away prior to the expiration
of the mayor’s term in office after appropriate progressive
disciplinary steps were followed. Whether Burrell’s job was
taken away without this due process hinges on whether the
defendants terminated his employment on April 30,
2001—forcing him from office a day early without implement-
ing progressive discipline—or whether the defendants simply
informed him he would not be reappointed, forcing him
from office at the expiration of his appointed term, but not
before. Only in the former scenario could Burrell complain
of deprivation of a federally guaranteed right.3
The evidence provided by the defendants in support of
their summary judgment motion included Burrell’s state-
ment in paragraph 16 of his fifth amended complaint that
mayor-elect Carter, in the presence of the other individual
defendants, “informed the Plaintiff that he would not be re-
appointed as City Clerk at the inaugural meeting of the
new City Council to be held the following evening, May 1,
2001, citing ‘poor job performance’ as the reason for termina-
tion.” The evidence also included Carter’s deposition testi-
mony describing the meeting with Burrell. Carter stated
that he and the council-elect met with Burrell the day prior
to their inauguration to let him know ahead of time, as a
courtesy, that he would not be reappointed at the May 1
meeting. Carter recounted that he did most of the talking
and told Burrell the council had no plans to reappoint him
3
As stated previously, Burrell does not allege on appeal that he
had any property interest in the city clerk position after the
expiration of his appointed term on May 1, 2001.
8 No. 03-3930
at the meeting on May 1 because of his job performance.
After the meeting concluded, Carter testified that Burrell
went out into the hall and spoke with the current mayor,
Ferguson. Mayor Ferguson then approached Carter and the
other council members and questioned why they “fired”
Burrell. Carter corrected her, stating that Burrell would not
be reappointed (not fired), which was consistent with what
he had communicated to Burrell.
The defendants also offered the testimony of Susan
O’Brien, Burrell’s assistant and ultimate replacement. She
testified that she saw Burrell after his meeting with the
incoming council. He told her that he’d been fired. She then
met with the incoming council, at which point she said they
gave her “[b]asically the same information . . . .” When asked
what that information was, she responded, “[t]hat they were
not reappointing [Burrell] as a city clerk.”
Burrell responded to the above with the deposition tes-
timony of David O’Dell, former chief of police, who spoke
with defendant council member Schilling about eight or nine
months after Schilling had taken office on May 1, 2001.
O’Dell testified that Schilling stated that the council had
“fired” Burrell, but provides no elaboration as to when or
how the “firing” took place.4
From the above, we glean that on April 30, 2001 the
incoming mayor and city council-elect told Burrell that he
would not be reappointed at their inaugural meeting on
4
Burrell also cited to deposition testimony from Mayor Ferguson,
which described her April 30, 2001 meeting with the incoming
council about Burrell. According to Ferguson, when she asked the
council why they fired Burrell, defendant Schilling answered, “We
all decided on this.” However, as the district judge noted, Burrell
failed to attach the cited pages to his summary judgment eviden-
tiary submission. Thus, it is not part of the record before us on
appeal, and we will not consider it. See Joseph P. Caulfield &
Assocs. v. Litho Prods., 155 F.3d 883, 888 (7th Cir. 1998).
No. 03-3930 9
May 1, 2001 because of performance problems. It’s evident
that Burrell and others, such as his replacement, O’Brien,
and even members of the incoming council, such as Schilling,
equated the loss of the reappointment under these circum-
stances to a termination. But nothing in the evidence supplied
by either party suggests that the termination was effective
April 30, 2001, rather than May 1, 2001 upon the conclusion
of Burrell’s term and the appointment of his replacement.
Based on the record, no rational trier of fact could conclude
that the individual defendants, by informing Burrell he
would be out of a job the following day upon the expiration
of his term, prevented him from working out the remainder
of his time in office. Burrell was not deprived of his job, thus
no process was due; he suffered no constitutional depriva-
tion at the hands of the individual defendants or the City.
We note, as did the district judge, that in opposing the
summary judgment motion Burrell relied heavily on a
statement made in his fifth amended complaint, which, if it
had been supported by affidavits or deposition testimony,
likely would have passed muster under § 1983’s deprivation
prong. That statement appears in paragraph 19 and
recounts that at the conclusion of his meeting with the in-
coming council on April 30, 2001, he asked if he should va-
cate the premises immediately; the defendants allegedly
responded affirmatively. The district court had previously
pointed out, in granting Burrell’s motion to reconsider the
court’s dismissal of his § 1983 claim under Federal Rule of
Civil Procedure 12(b)(6), that this fact was the crux of
Burrell’s case, and if properly supported, could show he was
forced out of office prematurely. Fatally, though, Burrell did
not cite or provide his affidavit or portions of his deposition
testimony supporting this statement in response to the
defendants’ summary judgment motion, relying exclusively
on the pleadings instead. As outlined above, mere allega-
tions in the pleadings, unsupported by record evidence,
cannot create an issue of fact defeating summary judgment.
10 No. 03-3930
See Fed.R.Civ.P. 56(e); Celotex, 477 U.S. at 324; Taylor v.
United States, 287 F.3d 658, 661 (7th Cir. 2002) (“Pleadings
are irrelevant at the summary judgment stage. Fed.R.Civ.P.
56(e). Once the affidavits and other materials are on file,
the question is not what the pleadings say but what the
evidence shows.”).5
2. Under color of state law
In attempting to explain why he abandoned his position
on April 30, 2001, rather than serving out his term, Burrell
argued, without record support, to both the district court
and to us, that he was “under considerable stress, confronted
by the already sworn members of the new City Council (al-
beit acting ultra vires because the Old Council was still valid)
and acted as any reasonable person would” in assuming
that people with authority to fire him were doing so. Bur-
rell’s contention that the incoming mayor and council-elect
had authority, prior to officially taking office, to terminate
him on April 30, 2001, and that they did so with the City’s
blessing, leads us to the second element of the § 1983
claim—whether the defendants acted under color of state
law. We find that they did not, establishing an alternative
basis for upholding the district court’s grant of summary
judgment.
For the individual defendants to act “under color of state
law” for § 1983 purposes means to “misuse [ ] power, pos-
5
Burrell did attach a portion of his deposition testimony to his
reply brief in this court ostensibly supporting his contention that
he was asked to leave immediately following the April 30, 2001
meeting with the council-elect. Unfortunately for Burrell, this
evidence comes far too late; our review is limited to the record
submitted before the district court, where Burrell’s deposition
does not appear. See Joseph P. Caulfield & Assocs., 155 F.3d at
888.
No. 03-3930 11
sessed by virtue of state law and made possible only because
the wrongdoer is clothed with the authority of state law.”
Honaker, 256 F.3d at 484 (quotations omitted). “As a result,
acts by a state officer are not made under color of state law
unless they are related in some way to the performance of the
duties of the state office.” Id. at 485.
It is undisputed that the individual defendants, though
duly elected and sworn, were not yet in office because they
had not been inaugurated as required by City ordinance.
Hence, they were not yet “state actors.” Even if they in-
tended to terminate Burrell on April 30, 2001, they had no
power to do so. To the extent Burrell mistakenly believed
they did, his erroneous interpretation of the events of April
30 does not convert the individual defendants’ private actions
into ones perpetrated under color of state law. For example,
in related contexts where plaintiffs claim they were prom-
ised employment by individuals whom they erroneously
believed to be capable of securing the position, we have
repeatedly refused to find § 1983 violations when the
plaintiffs did not receive the work. See, e.g., Zemke v. City
of Chicago, 100 F.3d 511, 513 (7th Cir. 1996) (“Furthermore,
an informal assurance by an official who is not authorized
to make it does not provide the basis for establishing a
protectable constitutional property interest. As we pointed
out in another of the many employment cases involving the
City of Chicago, promises may very well have been made,
but they do not give rise to a property interest unless they
are made by the right people.”) (citing Santella v. City of
Chicago, 936 F.2d 328, 331 (7th Cir. 1991) (listing cases)). The
individual defendants could not deprive Burrell of any prop-
erty interest that he may have had in his job because they
had no authority to fire him. Thus, they are not amenable
to suit under § 1983.
Burrell advances the alternative argument that even if
the individual defendants were not state actors, they con-
spired with a state actor to deprive him of his job. See
12 No. 03-3930
Cunningham v. Southlake Ctr. for Mental Health, Inc., 924
F.2d 106, 107 (7th Cir. 1991) (“When a private actor is im-
plicated, the section 1983 plaintiff may nevertheless prevail
if he shows sufficient state involvement in the action in
question to trigger constitutional protections.”) (citing Nat’l
Collegiate Athletic Ass’n v. Tarkanian, 488 U.S. 179, 192
(1988)). Under this “joint action” theory, “a private defen-
dant acts under color of state law when he is ‘a willful
participant in joint action with the State or its agents.’ ” Id.(quoting Dennis v. Sparks, 449 U.S. 24, 27 (1980)). This means
that Burrell needed to allege “some agreement between
private and public actors” to violate his constitutional rights
and show that “both public and private actors share a com-
mon, unconstitutional goal.” Id. Here, Burrell asserts that
the individual defendants acted in concert with the city
attorney, John Hefner, to violate his constitutional rights.
The record reveals that the incoming council, prior to their
inauguration, met several times to discuss issues they
would confront and changes they wished to make once in
office. One change they agreed upon soon after they began
meeting, according to the deposition testimony of defendant
Schilling, was that Burrell would not be reappointed to the
city clerk position. They shared this decision with Hefner,
the city attorney, in a private meeting shortly before their
inauguration. It is undisputed that Hefner tried to convince
the incoming council to reconsider their decision; however,
both Hefner and Schilling testified that the incoming
council would not be swayed. Hefner then advised the
council-elect about the possible legal implications of their
decision not to reappoint Burrell.
As stated above, to survive summary judgment on the
joint action theory, Burrell needed to show that the state
actor, Hefner, and the individual defendants conspired
together to deprive Burrell of his job without due process of
law and that they were each in some part motivated by that
same unconstitutional purpose. Cunningham, 924 F.2d at
No. 03-3930 13
107-08. Although it’s true Hefner provided legal advice to
the incoming council about their decision not to reappoint
Burrell, there is no evidence that he advised them to
“terminate” Burrell prior to the expiration of his term and
without following the progressive discipline steps outlined
in the City of Mattoon Personnel Code, or even knew that
this was their plan, as Burrell alleges.6 And, the undisputed
evidence shows that Hefner wanted Burrell to keep his job
and tried to persuade the council to reappoint him. Hefner
thus did not share in the individual defendants’ alleged
unconstitutional purpose or enter into any agreement with
them to violate Burrell’s constitutional rights. In short,
nothing Hefner said or did transfers the imprimatur of the
state to the individual defendants’ choice to proceed as they
did on April 30, 2001.
Burrell’s § 1983 claim fails on both elements—the
defendants did not deprive him of any constitutional right
nor did they act under color of state law in allegedly so do-
ing. Summary judgment was properly granted on the § 1983
claim. We next move to the district court’s determinations
on the state law claims.
B. State law claims
Although the district court could have dismissed the
supplemental state law claims without prejudice because it
6
Burrell vigorously argues that an April 30, 2001 billing entry
attributable to another attorney in Hefner’s law firm shows that
Hefner was aware of and endorsed the incoming council’s strategy.
This ambiguous entry involving “research in re: ‘appointment’ of
clerk and City of Mattoon Personnel Code and application of it to
city clerk’s position” does not enlighten the trier of fact as to what
advice was rendered, if any, about the timing of the incoming
council’s meeting with Burrell and the message to be communi-
cated to him. Without more, it cannot defeat summary judgment
on the § 1983 claim.
14 No. 03-3930
dismissed the § 1983 claim upon which federal jurisdiction
was predicated, see 28 U.S.C. § 1367(c)(3), it went on to
decide the remaining state law claims on their merits. This
is appropriate to ensure the efficient administration of
justice, especially in cases such as this where the defeat of
the federal claim necessarily requires the defeat of the state
law claims. See, e.g., City of Chicago v. Int’l Coll. of Sur-
geons, 522 U.S. 156, 173 (1997) (“[W]hen deciding to
exercise supplemental jurisdiction, ‘a federal court should
consider and weigh in each case, and at every stage of the
litigation, the values of judicial economy, convenience, fair-
ness, and comity.’ ”) (quoting Carnegie-Mellon Univ. v. Cohill,
484 U.S. 343, 350 (1988)); Miller Aviation v. Milwaukee
County Bd. of Supervisors, 273 F.3d 722, 731 (7th Cir. 2001)
(“[W]hen the district court, in deciding a federal claim, decides
an issue dispositive of a pendant claim there is no use leaving
the latter to the state court.”) (quotation omitted).
1. Breach of Contract
Burrell alleged that, in forcing him without warning from
his appointed position a day early, the defendants breached
the employment contract created by the City of Mattoon
Personnel Code, which required progressive discipline prior
to any termination. To prove breach of contract under
Illinois law, Burrell must come forward with evidence of (1)
the existence of a contract; (2) his performance under the
contract; (3) the defendants’ breach; and (4) resulting injury
from the breach. See Priebe v. Autobarn, Ltd., 240 F.3d 584,
587 (7th Cir. 2001) (citing Hickox v. Bell, 552 N.E.2d 1133,
1143 (Ill. App. Ct. 1990)). Assuming that the City of
Mattoon Personnel Code established an employment
contract between Burrell and the City, see Duldulao v. St.
Mary of Nazareth Hosp. Ctr., 505 N.E.2d 314, 318 (Ill.
1987), Burrell simply cannot establish its breach.
First, as already discussed above, the defendants did not
terminate Burrell on April 30, 2001—he was free to con-
No. 03-3930 15
tinue in his appointed position until the expiration of his
term. Second, as already discussed above, even if the indi-
vidual defendants did intend to terminate him, they were
private citizens at the time acting without the imprimatur
of the City, were thus not a party to the contract, and could
not have breached it. The district judge properly granted
summary judgment on the breach of contract claim.
2. Tortious interference with contractual relations
and/or tortious interference with prospective
economic advantage
Burrell also claimed that the individual defendants
tortiously interfered with prospective contractual relations
and/or tortiously interfered with a prospective economic
advantage. Although he frames the contract tortious inter-
ference claim as relating to a prospective contractual rela-
tionship, it is evident from the body of the complaint and from
his arguments both below and to us that what he seeks to
recover for is interference with his employment contract with
the City that should have ended with his term in office, not
any future contractual relation.
To establish tortious interference with contractual relations
under Illinois law, Burrell had to demonstrate the following
elements: (1) a valid and enforceable contract; (2) defendants’
awareness of the contractual obligation; (3) defendants’ in-
tentional and unjustified inducement of the breach; (4) sub-
sequent breach caused by defendants’ unlawful conduct; and
(5) resultant damages. Clarage v. Kuzma, 795 N.E.2d 348,
357 (Ill. Ct. App.), appeal den., 806 N.E.2d 1065 (Ill. 2003).
Although his logic is difficult to follow, we understand Burrell
to argue that the individual defendants induced the City to
breach his employment contract when they assumed its cloak
of authority and fired him on April 30. As determined
above, there was no contract breach—the individual
defendants acted as private citizens on April 30, 2001, could
16 No. 03-3930
not and did not fire him, and did not induce the City to do
so. His tortious interference with contractual relations claim
fails, and summary judgment was appropriately granted.
Burrell’s related tortious interference with a prospective
economic advantage claim seeks to recover for his purported
loss of the opportunity to convert his pension. The elements of
such a cause of action are as follows: (1) the plaintiff’s rea-
sonable expectation of entering into a valid business rela-
tionship; (2) the defendants’ knowledge of plaintiff’s expec-
tancy; (3) purposeful interference by the defendants that
prevents the plaintiff’s legitimate expectancy from being
fulfilled; and (4) damages to the plaintiff resulting from
such interference. Delloma v. Consolidation Coal Co., 996
F.2d 168, 170-71 (7th Cir. 1993) (citing Fellhauer v. City of
Geneva, 568 N.E.2d 870, 878 (Ill. 1991)); see also Dowd &
Dowd, Ltd. v. Gleason, 693 N.E.2d 358, 370 (Ill. 1998). While
we highly doubt that the opportunity to convert one’s pen-
sion benefits corresponds to an expectation of entering into
a valid business relationship, we easily conclude that the
defendants in no way “purposefully interfered” with Burrell’s
pension benefit conversion rights. The record reflects that
the individual defendants told him of their intention not to
reappoint him a day early, as a courtesy; they were under
no obligation to do so. Indeed, had the individual defendants
kept silent until the May 1, 2001 meeting, as was their un-
disputed right, and let Burrell discover at the expiration of
his term that his assistant would be appointed in his stead,
Burrell would have been in the same position he claims he
is today. The advance warning provided by the incoming
council actually gave Burrell an opportunity to get his affairs
in order and start the process of converting his pension
while a current employee, not the opposite. The individual
defendants did not interfere with any purported prospective
economic advantage, warranting summary judgment.
No. 03-3930 17
3. Conspiracy claims
Burrell’s final count alleges that the defendants conspired
to commit all of the wrongful acts enumerated in the prior
counts. As we have affirmed the dismissal of all the predi-
cate counts above, Burrell’s conspiracy claim must also fail.
III. Conclusion
For all of the above reasons, 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-02-C-0072—8-6-04