Date: 03-18-2018

Case Style:

Case Number: 17-1424

Judge: Bauer

Court: United States Court of Appeals for the Seventh Circuit on appeal from the Northern District of Illinois (Cook County)

Plaintiff's Attorney: Ruth Irene Major

Defendant's Attorney: K. Austin Zimmer, Jeffrey S. Fowler, Joseph Anthony Giambrone, Patrick Halpin OConnor and Joseph Michael Gagliardo

Description: Defendant-appellee, the Village of
Melrose Park (“the Village”), terminated plaintiff-appellant,
John Cannici, a former firefighter with the Village, for violating
the “Residency Requirements for Officers and Employees”
(“Residency Ordinance”) found in the Village’s Code of
2 No. 17-1424
Ordinances. Cannici filed suit against the Village claiming a
violation of both his due process and equal protection rights,
as well as requesting review under the Illinois Administrative
Review Act (“the Act”). The district court dismissed his due
process and equal protection claims and refused to exercise
supplemental jurisdiction over the remaining state law
administrative review claim. Cannici now appeals.
I. BACKGROUND
Cannici was a firefighter for the Village for sixteen years
before the Village terminated him because of his violation of
the Residency Ordinance. Cannici and his family lived in
Melrose Park until 2008. In 2008, due to personal circumstances,
the Cannici’s bought a home in Orland Park while
retaining ownership and possession of their Melrose Park
home. During the week, Cannici’s wife and two children lived
in the Orland Park home, while Cannici lived in the Melrose
Park home. The family spent the weekends together in one of
the two homes.
In 2013, Cannici decided to rent the Melrose Park home out
to the Cichon family. In an attempt to maintain residency at
this home, Cannici reserved a portion of the home in the
basement for his exclusive use, kept belongings in the home,
maintained access to the home, paid utilities and taxes for the
home, continued to receive all of his mail at this home, and
used the Melrose Park address for all professional and personal
matters. However, Cannici slept at the Orland Park home
between June 1, 2013 and June 15, 2016.
No. 17-1424 3
In May 2016, the Village requested an interview with
Cannici to inquire about his residency. Section 2.52 of the
Village’s Residency Ordinance states:
Each and every officer and employee of the
[V]illage, unless exempted by this chapter, must
be a resident of the [V]illage as that term has
been defined herein. Each and every officer must
maintain resident status during his or her term of
office. Each and every employee must maintain
resident status during his or her period of employment.
The Residency Ordinance defines resident as a “natural
person who occupies a residence, as hereinbefore defined, as
his or her principal place of residence and abode.”
Upon review, the Board of Fire and Police Commissioners
(“the Board”) determined Cannici violated the Village’s
Residency Ordinance and issued a written Statement of
Charges, dated June 28, 2016, seeking to terminate his employment.
Before his hearing, Cannici received the written Statement
of Charges and filed a motion challenging purported
ex parte communications. This motion addressed the prosecuting
attorney’s communications with the Board’s attorney
regarding procedural requirements for scheduling an agreed
hearing date and residency issues, as well as the prosecuting
attorney’s invitation from the Board’s counsel to appear before
the Board. Cannici’s attorney did not receive this same invitation.
The Board denied the motion.
On August 4, 2016, the matter proceeded to a hearing, at
which Cannici and his counsel were both present. Based on
4 No. 17-1424
testimony and arguments presented at the hearing, the Board
found Cannici had failed to maintain residency throughout his
employment. To support this finding, the Board acknowledged
Cannici established residency, but had failed to maintain
residency at his Melrose Park home between June 1, 2013 and
June 15, 2016.
On September 26, 2016, Cannici filed a three-count complaint
in state court. Cannici sought review under the Illinois
Administrative Review Act and claimed a violation of his due
process and equal protection rights. The defendants1 removed
the case to the Northern District of Illinois and subsequently
filed a motion to dismiss. On January 27, 2017, the district court
granted the motion to dismiss, refused to exercise supplemental
jurisdiction over the remaining state law administrative
review claim and thus, remanded the case back to state court.
Cannici now appeals the district court’s dismissal of his due
process and equal protection claims. Specifically, Cannici
claims the district court improperly labeled the Board’s
conduct as “random and unauthorized,” and thus, improperly
analyzed his due process claim. He further claims the district
court improperly applied Engquist in denying his equal
protection claim. For the following reasons, we affirm.
II. DISCUSSION
We review a district court’s ruling on a Rule 12(b)(6) motion
to dismiss de novo. LaBella Winnetka, Inc. v. Vill. of Winnetka, 628
F.3d 937, 941 (7th Cir. 2010). In so reviewing, “[w]e construe
1 Cannici also filed this lawsuit against Fire Chief Richard Beltrame, Board
of Fire and Police Commissioners, Michael Caputo, Mark Rauzi, and
Pasquale Esposito, and Mayor Ronald Serpico
No. 17-1424 5
the complaint in the light most favorable to the plaintiff,
accepting as true all well-pleaded facts alleged, and drawing
all possible inferences in [the plaintiff’s] favor.” Tamayo v.
Blagojevich, 526 F.3d 1074, 1081 (7th Cir. 2008).
A. Procedural Due Process
A procedural due process claim under § 1983 requires that
the plaintiff allege “(1) deprivation of a protected interest, and
(2) insufficient procedural protections surrounding that
deprivation.” Michalowicz v. Vill. Of Bedford Park, 528 F.3d 530,
534 (7th Cir. 2008). The parties do not dispute that Cannici had
a protected interest in his continued employment as a Village
firefighter. The issue before us is whether the Board provided
sufficient procedural protections.
To determine whether a defendant provided sufficient
procedural due process, we must first determine whether the
claim is based on established state procedures or on random
and unauthorized acts by state employees. Leavell v. Ill. Dep’t
of Nat. Res., 600 F.3d 798, 804 (7th Cir. 2010). A claim based on
a deprivation from established state procedures requires more
than simply the availability of post-deprivation procedures. Id.
at 805. The state’s ability to predict when a deprivation will
occur provides the state the ability to provide a pre-deprivation
hearing. Id. Conversely, a claim based on random and
unauthorized acts by state officials does not have the same
predictability, and thus, only requires a meaningful postdeprivation
remedy. Id. In this instance, the plaintiff must
“avail herself of state post-deprivation remedies or demonstrate
that the available remedies are inadequate.” Id. (internal
citations omitted).
6 No. 17-1424
Cannici argues that the district court erroneously analyzed
the Board’s decision as random and unauthorized conduct by
state officials. Cannici claims the proper focus is whether the
deprivation is difficult to predict, not whether the misconduct
leading to the deprivation is difficult to predict. Thus, because
the deprivation occurred through a formal, established
procedure, a point at which all parties knew when the deprivation
would occur, the established state procedure analysis is
appropriate. We do not agree with this analysis.
In Michalowicz, the plaintiff, a former firefighter for the
defendant, brought a due process claim. 528 F.3d at 533. The
basis of his claim was that the defendant deprived him of his
rights by using the Board of Trustees, an allegedly biased
hearing committee, rather than an independent hearing
committee as proscribed by relevant statute. Id. at 534–35. We
found the due process claim based on a biased committee “a
challenge to the ‘random and unauthorized’ actions of the state
officials in question, i.e., to their unforeseeable misconduct in
failing to follow the requirements of existing law.” Id. at 535.
We reasoned that, “[b]ecause such misconduct is inherently
unpredictable,” the state is obliged “to provide sufficient
remedies after its occurrence, rather than to prevent it from
happening.” Id.
While the hearing in Michalowicz was a post-termination
hearing, we nonetheless find this case instructive. Cannici’s
argument surrounding any potential bias of the Board is
precisely the same unpredictable misconduct contemplated in
Michalowicz. Thus, the district court’s application of random
and unauthorized acts by the Board was not erroneous.
No. 17-1424 7
Furthermore, we have found time and again that the Illinois
Administrative Review Act provides sufficient post-deprivation
relief. See 735 ILCS 5/3-101 et seq.; see also Michalowicz, 528
F.3d at 535–36; Leavell, 600 F.3d at 806; Stachowski v. Town of
Cicero, 425 F.3d 1075, 1078 (7th Cir. 2005). Cannici does not
contend that his rights under the Act have not been afforded
to him. In fact, his counsel brought to our attention that the
state court judge has found the administrative review claim in
his favor and deferred further proceedings pending this
Court’s decision. Thus, we have no reason to believe Cannici
has been deprived of his due process rights.
B. Equal Protection
Cannici also claims the district court erroneously found that
the Village did not violate his equal protection rights. Cannici
brings this claim individually and not on the basis of membership
in a protected class. He asserts the Village treated him
differently than other similarly situated Village employees.
Thus, we analyze under a class-of-one theory.
To prevail on a class-of-one equal protection theory, “a
plaintiff must allege that he has been intentionally treated
differently from others similarly situated and that there is no
rational basis for the difference in treatment.” Forgue v. City of
Chicago, 873 F.3d 962, 968 (7th Cir. 2017) (citing Engquist v. Or.
Dep’t of Argric., 553 U.S. 591, 601–02 (2008) (internal quotations
omitted)).
In Engquist, the Supreme Court held “the class-of-one
theory of equal protection does not apply in the public employ8
No. 17-1424
ment context.” Id. at 598. The Court reasoned that “[t]here are
some forms of state action … which by their nature involve
discretionary decisionmaking based on a vast array of subjective,
individualized assessments.” Id. at 603–04. Employment
decisions unequivocally qualify as such. Id. at 604. The court
went on to say,
[T]he class-of-one theory of equal
protection—which presupposes that like individuals
should be treated alike, and that to treat
them differently is to classify them in a way that
must survive at least rationality review—is
simply a poor fit in the public employment
context. To treat employees differently is not to
classify them in a way that raises equal protection
concerns. Rather, it is simply to exercise the
broad discretion that typically characterizes the
employer-employee relationship. A challenge
that one has been treated individually in this
context, instead of like everyone else, is a challenge
to the underlying nature of the government
action.
Id. at 605.
Cannici argues that equal protection claims are not inappropriate
in all government employment contexts, pointing to the
Court’s rationalization that “the Equal Protection Clause is
implicated when the government makes class-based decisions
in the employment context, treating distinct groups of individuals
categorically differently.” Id. (emphasis added). However,
we are not presented with a group of individuals here. Cannici
No. 17-1424 9
claims, as a class of one, that the Village treated him differently
than others when they decided to terminate his employment
due to the Residency Ordinance, but not terminate others
similarly situated. The Supreme Court has “never found the
Equal Protection Clause implicated in the specific circumstance
where, as here, government employers are alleged to have
made an individualized, subjective personnel decision in a
seemingly arbitrary or irrational manner.” Id. Thus, Cannici’s
equal protection claim must fail.
Cannici also attempts to distinguish his case from Engquist
by arguing that he was not an at-will employee, but rather two
pieces of legislation are “at the heart of his claim,” the Residency
Ordinance and the Fire Protection District Act. Thus, he
argues the holding in Engquist is not applicable. We disagree.
“Congress and all the States have, for the most part,
replaced at-will employment with various statutory schemes
protecting public employees from discharge for impermissible
reasons.” Id. at 606–07. “But a government’s decision to limit
the ability of public employers to fire at will is an act of
legislative grace, not constitutional mandate.” Id. at 607.
The relevant language from the Fire Protection District Act
states:
[N]o officer or member of the fire department of
any protection district who has held that position
for one year shall be removed or discharged
except for just cause, upon written charges
specifying the complainant and the basis for the
charges, and after a hearing on those charges
before the board of fire commissioners, affording
10 No. 17-1424
the officer or member an opportunity to be heard
in his own defense.
70 ILCS 705/16.13b.
We acknowledge this section requires “just cause” for
termination, rather than “no reason at all,” upon which an atwill
employee may be terminated. See Engquist, 553 U.S. at 606
(“The basic principle of at-will employment is that an employee
may be terminated for a good reason, bad reason, or no
reason at all.”) (internal quotations omitted). However,
nowhere in this statute does it provide full protection from
termination. Furthermore, as we previously stated, the Village
afforded Cannici precisely what this statute requires: written
charges, a hearing, and the opportunity to present evidence.
Thus, we affirm the district court’s dismissal of Cannici’s equal
protection claim.

Outcome: For the foregoing reasons, we AFFIRM the district court’s
findings.

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