Gloria Ellis v. MICHAEL SHEAHAN , Sheriff of Cook County

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-3947
G LORIA E LLIS ,
Plaintiff-Appellant,
v.
M ICHAEL S HEAHAN , Sheriff of Cook County,
Defendant-Appellee.
____________
Appeal from the United States District Court for
the Northern District of Illinois, Eastern Division.
No. 01 C 759—George M. Marovich, Judge.
____________
A RGUED M ARCH 31, 2005—D ECIDED J UNE 17, 2005
____________
Before F LAUM , Chief Judge, and P OSNER and E VANS , Circuit
Judges.
P OSNER , Circuit Judge. The plaintiff, a correctional officer
employed by the Cook County, Illinois, sheriff’s office, was
suspended pending termination proceedings before the
sheriff’s Merit Board. The proceedings had been instituted
because of a belief that the plaintiff might have been negli-
gent or otherwise at fault in failing to prevent a prisoner
whom she was guarding from committing suicide. Her
suspension began on July 24, 1998. Almost two years later,

-- 1 of 7 --

2 No. 04-3947
on April 17, 2000, the Merit Board issued its decision,
finding that there was misconduct but that the appropriate
punishment was not termination but merely suspension for
60 days; and so, the first 60 days of her suspension having
long expired, the board ordered her reinstated in her job
forthwith; and she was. She had by this time been sus-
pended for 633 days.
The sheriff’s policy, which is based on an interpretation of
Illinois judicial decisions, is to give the employee backpay
for only the part of the period in excess of the board’s
“sentence” that was not due to continuances requested or
not opposed by the employee. So instead of awarding the
plaintiff backpay for 573 days (633 - 60), the sheriff awarded
her backpay for only 106 days, all the rest of the time that
the matter was before the Merit Board being accounted for
by continuances that the plaintiff had either requested or
not opposed. The sheriff also refused, pursuant to another
policy of his, to pay any interest on the backpay.
In this suit under 42 U.S.C. § 1983, the plaintiff claims that
the sheriff has deprived her of property, consisting of an
entitlement to backpay for the entire 573-day period and
interest on that amount also for the entire period, without
due process of law and therefore in violation of the
Fourteenth Amendment. She also claims a denial of equal
protection of the laws, but that claim is frivolous and re-
quires no discussion.
The first question bearing on the due process claim is
whether it is true that under Illinois law an employee who
has been suspended is entitled to backpay during a period
in which he prolonged the suspension by delaying, or
acquiescing in the delay of, the proceedings in which he
is challenging the suspension. Suspension followed by an
award of backpay for the period of suspension is a paid
vacation, and if the suspended employee prolongs the

-- 2 of 7 --

No. 04-3947 3
vacation he imposes costs on the employer that were not
contemplated by the employment contract.
But a flat rule denying backpay for the part of the sus-
pension period that was due to continuances sought by the
employee, or even more clearly a rule denying backpay
during continuances in which he merely acquiesced that
had been sought by the opposing party or ordered by the
judge on the judge’s own initiative, would be unreasonable,
and is not Illinois law. There are many situations in which
a motion for a continuance (not to mention a failure to
oppose a continuance sought by another party, let alone one
ordered by the judge without prompting by either party) is
entirely reasonable and cannot be attributed to a willful
desire to protract the litigation. In other situations such a
motion is a delaying tactic and then the principle of mitiga-
tion of damages, which bars a wronged individual from
obtaining damages that he could easily have avoided and
which in Illinois as elsewhere is applicable to claims of
backpay, East St. Louis School District No. 189 v. Hayes, 604
N.E.2d 557, 561-62 (Ill. App. 1992); Chesser v. Illinois, 895
F.2d 330, 336-37 (7th Cir. 1990); Kamberos v. GTE Automatic
Electric, Inc., 603 F.2d 598, 603 (7th Cir. 1979); Sands v.
Runyon, 28 F.3d 1323, 1328 (2d Cir. 1994), clicks in. But fail-
ure to mitigate damages is a defense, in Illinois, Sharon
Leasing, Inc. v. Phil Terese Transportation, Ltd., 701 N.E.2d
1150, 1158-59 (Ill. App. 1998); Kensington Rock Island Ltd.
Partnership v. American Eagle Historic Partners, 921 F.2d 122,
125 (7th Cir. 1990); Donnelly v. Yellow Freight System, Inc.,
874 F.2d 402, 411 (7th Cir. 1989), as elsewhere. United Int’l
Holdings, Inc. v. Wharf (Holdings) Ltd., 210 F.3d 1207, 1230
(10th Cir. 2000); Koppers Co. v. Aetna Casualty & Surety Co.,
98 F.3d 1440, 1448 (3d Cir. 1996); Travellers Int’l, A.G. v.
Trans World Airlines, Inc., 41 F.3d 1570, 1580-81 (2d Cir.
1994). And so the sheriff, to ground his policy in Illinois

-- 3 of 7 --

4 No. 04-3947
law, would have to show that the plaintiff’s requests for
continuances were unjustifiable, which he has not tried to
do. So we may assume that the plaintiff has an entitlement
to backpay for 467 days (573 - 106). We have been unable to
discover whether state law would entitle her to interest on
backpay.
But to have and lose an entitlement is not enough to
establish a deprivation of property without due process of
law; it establishes only that a deprivation of property has
taken place. The plaintiff had to show that the property was
taken away from her without notice and the opportunity for
a hearing at which she could try to contest the deprivation.
She had and indeed still has adequate procedural routes by
which to obtain such a hearing. She could have asked the
Merit Board to award her backpay. Mitchem v. Cook County
Sheriff’s Merit Board, 554 N.E.2d 331, 334-35 (Ill. App. 1990);
Burton v. Sheahan, 2001 U.S. Dist. LEXIS 25789, at *17-19
(N.D. Ill. May 16, 2001); cf. Kropel v. Conlisk, 322 N.E.2d 793,
798 (Ill. 1975); County of Cook v. Illinois Local Labor Relations
Board, 707 N.E.2d 176, 179 (Ill. App. 1998); Hoban v. Rochford,
392 N.E.2d 88, 94 (Ill. App. 1979). Unless the statute of
limitations has run, she can still obtain the missing backpay,
if she has any right to it, by a suit under the Illinois wage
payment statute, 820 ILSC 115/1 et seq.; Byung Moo Soh v.
Target Marketing Systems, Inc., 817 N.E.2d 1105, 1107-08 (Ill.
App. 2004); Miller v. Kiefer Specialty Flooring, Inc., 739 N.E.2d
982, 986-87 (Ill. App. 2000), or by an action for mandamus.
People ex rel. Hilger v. Myers, 252 N.E.2d 924, 926 (Ill. App.
1969) (“mandamus is a proper remedy to enforce [sic]
officials to perform their duty in paying salary to an em-
ployee lawfully entitled to the same”); People ex rel. Bourne
v. Johnson, 199 N.E.2d 68, 69-71 (Ill. App. 1964).
In perfunctory and unconvincing argument, the
plaintiff’s lawyer denies the adequacy of any of these rem-

-- 4 of 7 --

No. 04-3947 5
edies—arguing for example that the suggestion that his
client might have a wage payment claim is frivolous be-
cause backpay for a period of suspension is not a wage. It is
a wage, defined in the Wage Payment Act as “any compen-
sation owed an employee by an employer pursuant to an
employment contract or agreement between the 2 parties.”
820 ILCS 115/2. It is much like the salary that one receives
during a paid vacation, which is deemed a wage even
though one is not working during that period. 820 ILCS
115/5; Daniels v. Board of Education, 661 N.E.2d 468, 471
(Ill. App. 1996); Prettyman v. Commonwealth Edison Co., 653
N.E.2d 65, 68 (Ill. App. 1995). It is also much like severance
pay, which one receives after leaving the defendant’s
employment altogether. Anderson v. First American Group of
Cos., 818 N.E.2d 743, 745-46, 748 (Ill. App. 2004).
The plaintiff argues that a remedy effective only after the
deprivation of property has occurred satisfies due process
of law only if the deprivation was “random and unautho-
rized,” and here it was systematic—it was pursuant to
the sheriff’s unbending policy of deducting backpay for
procedural delays that are due to the motions for continu-
ances made or acquiesced in by the employee, and the
sheriff was the authorized policymaker for the employees in
his office. But the plaintiff overreads the cases that recite the
quoted formula. E.g., Parratt v. Taylor, 451 U.S. 527, 541-43
(1981); Albright v. Oliver, 510 U.S. 266, 283-84 (1994) (concur-
ring opinion); Peña v. Mattox, 84 F.3d 894, 902 (7th Cir.
1996); Clifton v. Schafer, 969 F.2d 278, 281 (7th Cir. 1992);
Carcamo v. Miami-Dade County, 375 F.3d 1104, 1105 (11th Cir.
2004) (per curiam). She is not complaining that she was
suspended from her job without due process. The deprivation
of which she complains occurred when, in reaction to the
Merit Board’s curtailment of the suspension, the sheriff
refused to give her backpay for the part of the “excess”

-- 5 of 7 --

6 No. 04-3947
suspension that was due to continuances that she had
requested or consented to. The constitutional right to a
hearing before an entitlement is denied is designed to
protect the plaintiff’s interest “in the uninterrupted receipt
of his source of income pending final administrative deci-
sion on his claim.” Mathews v. Eldridge, 424 U.S. 319, 340
(1976). In other words, like preliminary relief generally, it is
intended to preserve the status quo. The plaintiff’s claim for
backpay didn’t arise until the status quo was restored, that
is, until she was reinstated; for it was only then that it was
determined that she should have been reinstated earlier and
therefore was entitled to backpay.
Moreover, we have difficulty understanding what prede-
privation process she envisages if the deprivation consisted
of the sheriff’s refusing, upon her reinstatement, to give her
all the backpay she wanted. Does she think the sheriff
should have given her a hearing at which she could have
challenged his policy on backpay? That would have been a
futility. What she needed and got was the right to seek relief
against his action, and she had that by virtue of the Wage
Payment Act and the mandamus statute.
Nor does it make a lot of sense to say that when a post-
deprivation hearing is not only feasible but will give the
deprived individual a completely adequate remedy, as is
true in this case, due process requires a right to a prede-
privation hearing as well. Such a rigid approach would be
inconsistent with the spirit, at least, of the sliding-scale
approach of Mathews, which requires comparison of the
costs and benefits of alternative remedial mechanisms. 424
U.S. at 332-35; see also Hamdi v. Rumsfeld, 124 S.Ct. 2633,
2646 (2004) (plurality opinion); Swank v. Smart, 898 F.2d
1247, 1255-56 (7th Cir. 1990); Mayo v. Lane, 867 F.2d 374, 384
(7th Cir. 1989) (concurring opinion); Kapps v. Wing, 404 F.3d
105, 118 (2d Cir. 2005); Graham v. City of Philadelphia, 402

-- 6 of 7 --

No. 04-3947 7
F.3d 139, 145-46 (3d Cir. 2005). In a variety of cases not
limited to ones in which the seizure is random and unautho-
rized, predeprivation process has not been required. E.g.,
Zinermon v. Burch, 494 U.S. 113, 128 (1990); Memphis Light,
Gas & Water Division v. Craft, 436 U.S. 1, 19-20 (1978);
Ingraham v. Wright, 430 U.S. 651, 682 (1977); Calero-Toledo v.
Pearson Yacht Leasing Co., 416 U.S. 663, 678-80 (1974); Wall v.
City of Brookfield, 406 F.3d 458, 460 (7th Cir. 2005); Porter v.
DiBlasio, 93 F.3d 301, 305-06 (7th Cir. 1996); Sutton v. City of
Milwaukee, 672 F.2d 644, 647 (7th Cir. 1982); Weinberg v.
Whatcom County, 241 F.3d 746, 753-54 (9th Cir. 2001).
Suppose that in some class of case, predeprivation hearings
though feasible are very costly, and the state decides to split
the cost savings from eliminating such hearings by award-
ing plaintiffs more money in a postdeprivation hearing than
they would be entitled to in a predeprivation hearing. It
seems to us (though we cannot find a case on the point) that
the postdeprivation hearing would satisfy the requirements
of due process of law; and this is only a little less obvious if
the postdeprivation remedy is as generous as, rather than
more generous than, the predeprivation one.
A FFIRMED .
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—6-17-05

-- 7 of 7 --