Todd Barkow v. School District of Athens ( 2022 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued October 4, 2022
Decided October 20, 2022
Before
MICHAEL Y. SCUDDER, Circuit Judge
AMY J. ST. EVE, Circuit Judge
CANDACE JACKSON-AKIWUMI, Circuit Judge
No. 22-1521
TODD A. BARKOW, Appeal from the United States District
Plaintiff-Appellant, Court for the Western District of
Wisconsin.
v.
No. 20-cv-1030-jdp
SCHOOL DISTRICT OF ATHENS and
DEAN ELLENBECKER, James D. Peterson,
Defendants-Appellees. Chief Judge.
ORDER
Todd Barkow sued his former employer, a school district, asserting that it
violated his federal due process rights when it did not conduct a hearing before
deciding not to employ him after his contract expired. The district court concluded that
Barkow did not have a property right in continued employment and entered summary
judgment against him. Because Barkow did not raise a genuine dispute about whether
the district promised him further employment, we affirm.
Under a series of one-year contracts, Barkow worked as the building and
grounds supervisor for the School District of Athens, Wisconsin, from 2011 to 2019. The
No. 22-1521 Page 2
contract at issue, for July 2018 through June 2019, does not contain language about
renewal or mention employment after the end date.
During his tenure, some of Barkow’s communications caused offense or needed
correction. In 2017, for example, after the school board introduced a performance pay
plan, Barkow emailed the board to question why it was necessary. Timothy Krueger, a
board member, felt that Barkow had inappropriately challenged the board’s authority.
Barkow’s supervisor, who was otherwise satisfied with Barkow’s performance, also had
to instruct Barkow about how to better respond to inquiries from coworkers and
community members.
In August 2018, Barkow sent several emails criticizing work being done on the
school district’s baseball diamond. Local construction companies had volunteered to
refurbish the baseball diamond to commemorate a student who had died earlier that
year. Defendant Dean Ellenbecker, who had two relatives on the school board, offered
his construction company’s services for the project. Part way through the work, Barkow
noticed standing water near the area. He photographed it, and asked about it in an
email to two school board members, other school district officials, and Ellenbecker.
Ellenbecker responded that the issue had “already been taken care of.” Barkow emailed
the same recipients again because he had noticed the water two days in a row and
“[did] not see where anything was taken care of.”
Barkow’s emails offended Ellenbecker. After sending an email telling Barkow to
“stick [his] picture up [his] ass,” Ellenbecker emailed complaints about Barkow to the
two school board members and school district officials. He described how Barkow was
“running his mouth down at happy hour” about progress on the baseball diamond and
complained that, despite criticizing the work, Barkow did not offer to help with the
project. Ellenbecker wrote: “As far as I’m concerned, if he’s involved with the school, I
won’t do another project for Athens school district.”
Several weeks after this incident, the school board imposed discipline on
Barkow. In late September, the board’s attorney and the superintendent met with
Barkow. The attorney told Barkow that the school board was unhappy with his attitude
and that multiple community members and coworkers had complained about him.
Barkow was placed on paid administrative leave. Then the attorney sent Barkow a letter
listing six areas of unsatisfactory job performance and invited Barkow to meet with the
board on October 24. The attorney explained that this meeting was not a hearing, but an
informal opportunity for Barkow to present his views. Barkow attended the meeting
and discussed the areas of his performance the board had highlighted in its letter.
No. 22-1521 Page 3
Barkow’s presentation at the October 24 meeting did not reassure the school
board. In early November, the school board’s attorney sent Barkow a document
summarizing the board’s conclusions. (The record does not contain any
contemporaneous documentation of the meeting.) This “Notice of Performance
Deficiencies and Performance Expectations” (the “Notice”) criticized Barkow’s general
attitude and his behavior at the meeting. The Notice also described six areas in which
his performance was unsatisfactory and how the board wanted him to improve. The
last three paragraphs explained how the board would evaluate Barkow’s performance
and discussed the continuation of his employment beyond the contract’s expiration:
The School Board will evaluate your interactions and your
performance on a bi-monthly basis over the next seven
months. The School Board will decide whether or not you will
continue employment with the School District at the
expiration of your current employment contact [sic] on June
30, 2019. You will not receive a new employment contract
from the School District but rather will be advised of the
School Board decision regarding your continued employment
in writing.
You will be expected to perform your duties as Buildings and
Grounds Supervisor in accordance with the expectations
described in this document. You will also be expected to
exercise appropriate professional decision-making
responsibilities regarding the maintenance and condition of
the school buildings and the projects that are assigned to you
for continued upkeep and maintenance of the School District
buildings.
Failure to properly perform your duties will result in a
decision to discontinue your employment at the end of your
current employment contract.
In April 2019, the school board informed Barkow that it would not continue
employing him the next year. Barkow sued the school district under 42 U.S.C. § 1983,
alleging the termination of his employment without a hearing violated his right of due
process. (Barkow also asserted an equal protection violation but later dismissed the
No. 22-1521 Page 4
claim voluntarily.) He also sued Ellenbecker under Wisconsin law for tortious
interference with his employment.
After discovery, the defendants moved for summary judgment, and the district
court granted the motion. It concluded that neither Barkow’s employment contract nor
the Notice created a property interest in continued employment. It therefore entered
judgment for the school district on the due process claim. It then relinquished
supplemental jurisdiction over the state-law claim and dismissed it without prejudice.
On appeal, Barkow concedes that the employment contract did not create a
property interest. Instead, he argues that the Notice created a property interest because,
by negative implication, it promised that if he fulfilled its requirements, he could
continue working beyond his 2018–2019 contract. We review the grant of summary
judgment de novo, construing all facts and reasonable inferences in favor of Barkow.
See Kvapil v. Chippewa County, 752 F.3d 708, 712 (7th Cir. 2014).
Property interests do not come from the federal Constitution but originate from
an “independent source” such as “state statutes, state or municipal regulations or
ordinances, and contracts with public entities.” Bd. of Regents of State Colleges v. Roth,
408 U.S. 564, 577 (1972); Rock River Health Care, LLC v. Eagleson, 14 F.4th 768, 773
(7th Cir. 2021) (internal quotation marks omitted). To survive summary judgment on
the issue of whether the Notice gave him a property interest, Barkow had to show that
the Notice “clearly limited” the school district’s discretion to end his employment after
the contract’s term elapsed. See Cole v. Milwaukee Area Tech. Coll. Dist., 634 F.3d 901, 904
(7th Cir. 2011). Because Barkow worked in Wisconsin, that state’s law controls. Id.Under Wisconsin law, the legality of a non-renewal of employment, like a
discharge, depends on whether employment is “at-will” or can be ended only for cause
based on a contract or other terms of employment. See Beischel v. Stone Bank Sch. Dist.,
362 F.3d 430, 436 (7th Cir. 2004) (assessing whether contract non-renewal is “at-will” or
“for-cause”). Here, Barkow concedes that based on his yearly contract, renewal (or
continuation of employment without a new contract) was at-will. He admits that the
contract contains no provision for, or presumption of, employment past the end date,
based on his performance or any other reason. Thus, the contract permitted the school
district to deny further employment at its discretion. See id. (employee had no property
interest in the renewal of her two-year contract because employer could deny renewal
at its discretion); see also Roth, 408 U.S. at 578 (no entitlement to renewal because terms
of employment specified an end date and did not discuss renewal).
No. 22-1521 Page 5
Barkow argues that his entitlement to future employment stemmed from the
Notice. The question is therefore whether this document modified the at-will nature of
Barkow’s employment outside the contract year. It does not.
A document containing guidance for an employee, such as a handbook or a
performance improvement plan, can modify an at-will employment relationship. To do
so, however, it must contain “express provisions from which it reasonably could be
inferred that the parties intended to bind each other to a different relationship.” Bantz v.
Montgomery Ests., Inc., 473 N.W.2d 506, 507–08 (Wis. Ct. App. 1991) (personnel policy
did not alter at-will employment); see also Vorwald v. Sch. Dist. of River Falls, 482 N.W.2d
93, 96 (Wis. 1992) (same); cf. Thelen v. Marc's Big Boy Corp., 64 F.3d 264, 269 (7th Cir.
1995) (statements in employment contract describing “sufficient cause” for termination
did not overcome presumption of at-will status). In Ferraro v. Koelsch, for example, the
Wisconsin Supreme Court held that “explicit promises” in the employee handbook—
such as the employer promising to terminate some employees only for just cause, if
employees promised to give two weeks’ notice before leaving—transformed the
employment relationship from at-will to for-cause. 368 N.W.2d 666, 671–72 (Wis. 1985).
Compare with Bantz, 473 N.W.2d at 510 (finding no modification of at-will status because
the employee handbook did not expressly mandate termination for just cause).
Here, the Notice contains no express provisions, such as explicit promises or
mutually beneficial commitments, from which we can infer that Barkow and the school
district intended to modify the at-will relationship. The Notice mentions potential
renewal just twice. First, it says the school board would decide “whether or not
[Barkow] will continue employment with the School District at the expiration of
[Barkow’s] current employment contact [sic] on June 30, 2019.” Second, it relates that
Barkow would be “advised of the School Board decision regarding [his] continued
employment in writing.” Neither of these is a promise to renew based on satisfactory
performance. Moreover, the board issued the Notice because it was unhappy with
Barkow’s performance, which belies an inference that the board gratuitously increased
its obligation to him and “intended to bind” itself to for-cause termination. Bantz, 473
N.W.2d at 507–08; cf. Chapman v. B.C. Ziegler & Co., 839 N.W.2d 425, 431 (Wis. Ct. App.
2013) (contract interpretation should avoid “unreasonable and absurd” results.)
Barkow insists, however, that a right to keep his position is implied in the last
sentence of the Notice: “Failure to properly perform your duties will result in a decision
to discontinue your employment at the end of your current employment contract.” This,
he contends, promises that his employment would continue if he did improve in the six
outlined areas. He attempts to distinguish Colburn v. Trustees of Indiana University,
No. 22-1521 Page 6
973 F.2d 581 (7th Cir. 1992), which the district court cited. Colburn explained that
promotion or retention criteria—like the Notice’s performance expectations— do not
restrict an employer’s discretion to end employment and thus do not, alone, create a
property right. Id. at 589–90.
Barkow argues that, unlike the subjective criteria in Colburn, the Notice listed six
specific and objective criteria and therefore guaranteed Barkow’s employment if he
fulfilled them. For support, he relies on McCammon v. Indiana Department of Financial
Institutions, 973 F.2d 1348 (7th Cir. 1992), and Cheli v. Taylorville Community School
District, 986 F.3d 1035 (7th Cir. 2021). He argues these cases establish that “[w]here the
only thing a government employer says about an employee’s job security is that he or
she may be dismissed if any one of a set of specified conditions occurs, that statement is
an implied promise that, if none of the specified conditions occurs, the employee will
not be dismissed.” But even assuming that this interpretation is correct, the Notice’s
performance-improvement criteria were not the “only thing” the school board said
about his employment. His contract was the main event; it set out the terms of his
employment, which, the parties agree, did not include a right of continued
employment. The cases are further distinguishable because the employment
relationships at issue were governed by a statute, McCammon, 973 F.2d at 1349–50, and a
collective bargaining agreement, Cheli, 986 F.3d at 1037, 1039. The Notice, by contrast,
did not bind the parties to any employment terms other than those in the contract.
For these reasons, we AFFIRM the judgment.