Rodney A. Arneson v. Marcia Jezwinski
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SUPREME COURT OF WISCONSIN Case No.: 95-1592 Complete Title of Case: Rodney A. Arneson, Plaintiff-Respondent-Petitioner, v. Marcia Jezwinski, Personnel Coordinator, Administrative Data Processing, UW-Madison, Durwood Meyer, Assistant Director, Administrative Data Processing, UW-Madison and Dan Thoftne, Computer Operations Manager, Administrative Data Processing, UW-Madison, Defendants-Appellants. ON REVIEW OF A DECISION OF THE COURT OF APPEALS Reported at: 217 Wis. 2d 288, 577 N.W.2d 386 (Ct. App. 1998, Unpublished) Opinion Filed: Submitted on Briefs: Oral Argument: May 5, 1999 January 6, 1999 Source of APPEAL COURT: COUNTY: JUDGE: Circuit Dane Moria Krueger JUSTICES: Concurred: Dissented: Not Participating: Abrahamson, C.J., did not participate ATTORNEYS: For the plaintiff-respondent-petitioner there were briefs by Jacqueline Macaulay and Macaulay Law Office, Madison and oral argument by Jacquelien Macaulay. For the defendants-appellants the cause was argued by Richard Briles Moriarty, assistant attorney general, with whom on the brief was James E. Doyle, attorney general. No. 95-1592 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 95-1592 STATE OF WISCONSIN : IN SUPREME COURT FILED Rodney A. Arneson, MAY 5, 1999 Plaintiff-Respondent-Petitioner, v. Marilyn L. Graves Clerk of Supreme Court Madison, WI Marcia Jezwinski, Personnel Coordinator, Administrative Data Processing, UW-Madison, Durwood Meyer, Assistant Director, Administrative Data Processing, UW-Madison and Dan Thoftne, Computer Operations Manager, Administrative Data Processing, UW-Madison, Defendants-Appellants. REVIEW of a decision of the Court of Appeals. ¶1 Arneson, DONALD seeks W. STEINMETZ, review of a J. court The of Affirmed. petitioner, appeals' Rodney decision that reversed the circuit court's denial of the defendants' motion for summary judgment on grounds of qualified immunity. contends that the defendants are immunity from his 42 § 1983 U.S.C. not entitled suit to because Arneson qualified when they demoted him and suspended him without pay for 30 days following a sexual harassment complaint filed against him by a subordinate employee, they violated his clearly established constitutionally protected property interests in employment. 1 his wages and continuous No. ¶2 95-1592 This court is presented with the following question: whether, in April 1990, when the defendants suspended the plaintiff without pay for 30 days and demoted him following a complaint of sexual harassment, they had reason to be aware that their actions would violate constitutional rights. Arneson's clearly established This question demands that we resolve the following issues: did state law clearly establish in April 1990 that Arneson had a property interest in his wages and in his continuous employment and, if so, did federal law clearly establish in April 1990 the amount of due process Arneson was entitled to receive prior interests. If the to answer being to deprived either of question defendants are entitled to qualified immunity. his is property "no", the As we answer "yes" to the first question and "no" to the second, we find that the defendants are entitled to qualified immunity. I ¶3 The parties agree that for purposes of the qualified immunity inquiry on summary judgment, as we are presented the case, the Commission factual in findings Arneson's undisputed. The has been direct direct fully below, background of this made case, we the appeal appeal, fully by of which where his will resolved.1 draw Wisconsin be In Personnel discipline are detailed more describing the appropriate from the Commission's findings. 1 See Arneson v. University of Wisconsin, Wis. Pers. Comm. No. 90-0184-PC (May 14, 1992). 2 No. ¶4 95-1592 Rodney Arneson was a University of Wisconsin employee when, in March 1990, a female employee whom he supervised filed a sexual harassment complaint against him. was filed, Arneson WisconsinMadison, Management supervisor).2 was employed Administrative Information by Data Specialist When the complaint the University Processing Supervisor (ADP) 4 of as (MIS a 4 He had been promoted to the position of MIS 4 supervisor in January 1990, and, at the time of the complaint, was within accompanies the statutorily promotions defined within probationary state public period that employment provided by Wis. Stat. § 230.28(1)(a) and (am) (1989-90).3 as Prior to the January 1990 promotion, Arneson had attained permanent status in class as an MIS 3 employee4 and had been working for the University for approximately nine years. 2 The ADP has since been Information and Technology (DoIT). renamed the Department of 3 All references are to the 1989-90 version of the statutes unless otherwise noted. 4 We note a discrepancy between the record and the parties' oral arguments with respect to the position from which Arneson was promoted in January 1990. The record, as evidenced most clearly in the Personnel Commission s Findings of Fact, provides that Arneson was promoted from an MIS 3 non-supervisory position to an MIS 4 supervisory position. However, during their oral arguments, the parties appear to have agreed that Arneson was promoted from an MIS 4 non-supervisory position to an MIS 4 supervisory position. As will become clear, since part of the discipline which Arneson claims deprived him of a property interest included a demotion to a position below MIS 3, it matters little for our purposes here whether at the time of his promotion Arneson was employed within a classification of MIS 3 or MIS 4 non-supervisory. 3 No. ¶5 Arneson was the immediate supervisor of 95-1592 the female complainant, a high school student who worked as a tape operator for the ADP. On March 9, 1990, the female employee brought to work a bridal magazine, and while she was looking at it Arneson began talking and joking with her about the magazine and her wedding plans. Later that evening, the female employee gave him the magazine. When he returned it, Arneson told her that the most interesting thing in the magazine was a girl modeling a bra. Arneson also told her that he owned a camera and enjoyed taking pictures of beautiful things and that he believed that the most beautiful thing was a woman in her bra. ¶6 The female employee volunteered to Arneson that she was not interested in modeling for him, but that her sister modeled and might be interested. Arneson asked about the sister's looks and the female employee showed him her sister's picture. Arneson also asked the female employee to call her sister, which she did. Arneson then spoke with the sister and told her that he wanted to take pictures of her wearing a bra and slip, and that he would pay her $20 per hour to model for him. ¶7 Arneson further explained that he had taken similar pictures in the past, that he was married, that the photos were for his personal use, and that he could take the pictures at her house, his house, or on campus. The three then made plans to speak about further arrangements on the following Monday. ¶8 employee On that following told Arneson that Monday, March her sister was 4 12, not the female interested in No. modeling for him. 95-1592 After a brief discussion, neither Arneson nor the employee again spoke about taking photos. ¶9 The female employee did not go to work on Tuesday, March 13, although she returned on March 14. employee notified the defendant On March 15, the Durwood Meyer, Assistant Director of ADP, that Arneson had sexually harassed her. contacted the Coordinator, telephoned defendant later the that female Marcia same Jezwinksi, day. employee On at ADP March her home Personnel 17, and Meyer Jezwinski set up an appointment to speak with both her and her sister. ¶10 On employee Monday, and her March 19, sister. Both Jezwinksi filled interviewed out formal the sexual harassment complaints against Arneson, and Jezwinski asked that neither discuss the lawsuit with anyone. the female another employee employee at did the discuss ADP. the That However, the next day, sexual employee harassment later with told yet another employee, who, in turn, told Arneson on March 22 that Arneson was the subject of a sexual harassment complaint. ¶11 On March 23, Arneson sought out Jezwinski who confirmed that the female employee had filed a sexual harassment complaint against him. themselves and The two then scheduled a meeting between Arneson's immediate supervisor, the third defendant in this matter, Dan Thoftne, for later in the day. ¶12 The Personnel Commission's Findings of Fact described this meeting between Arneson, Jezwinski, and Thoftne as follows: The meeting took place as scheduled. At the meeting, Jezwinski asked Arneson questions about his 5 No. 95-1592 interaction with the employe and her sister regarding taking photos. Jezwinski told Arneson very little about the employe's allegations, except to the extent they were corroborated by Arneson's statements. At the close of the meeting, Arneson was directed to stay away from the employe and not talk to anyone about the matter. The employe was reassigned to the print room. The commission further found that at this meeting, Arneson was given an opportunity to talk and before the meeting ended Jezwinski told Arneson that while she did not know what was going to happen, any level of discipline from reprimand through suspension or termination was possible. ¶13 On April 2, Thoftne and Meyer told Arneson that he was suspended with complaint. pay pending investigation of the employee's A letter of suspension was given Arneson by Thoftne and Meyer in Meyer's office. ¶14 On April 19, Arneson was given a letter of discipline. He was called into a meeting with both Thoftne and Meyer, who went through the details of the discipline which included a 30day suspension without pay and a demotion to a position to be later determined, which was accompanied by a reduction in pay from $15.51/hr. to $12.659/hr. On May 3, 1990, Arneson was informed by letter that he was assigned to a Data Processing Operations Technicians 4 (DPOT4). There is no dispute that this position was below the position which Arneson held prior to his promotion to MIS 4 supervisor. ¶15 On disciplinary May 15, action 1990, with Arneson the filed Wisconsin pursuant to Wis. Stat. § 230.44(1)(c). an appeal Personnel of the Commission The Commission Examiner heard testimony over a three-day period in the fall of 1990 and 6 No. concluded that Arneson predisciplinary due did process, not and receive that, in his 95-1592 right event, any to his behavior with the female employee did not warrant the severe discipline he received. ¶16 Subsequently, on February 6, 1992, the full Personnel Commission issued an interim decision and order adopting the hearing examiner's proposed decision and order. The proposed decision included the following conclusions of law: 1. This matter is properly before the Commission pursuant to § 230.44(1)(c), Stats. 2. Respondent [University of Wisconsin System (Madison)] has the burden of proof. 3. Respondent was required to have provided appellant with a predisciplinary hearing sufficient under the standards set forth in Cleveland Bd. Of Education v. Loudermill, 470 U.S. 532 [] (1985). 4. Respondent failed to provide an adequate predisciplinary hearing. 5. This disciplinary action is defective and must be rejected. ¶17 Based on its conclusion that Arneson was entitled to a predisciplinary hearing and did not receive it, the Commission ordered the consistent University with its of WisconsinMadison decision; i.e., to to take reverse action Arneson's discipline and restore him to his promotional position. ¶18 Despite its conclusion that Arneson was denied his due process rights, the Commission deemed appropriate a discussion of the merits of the disciplinary action. It found that because Arneson's actions were not illegal, threatening or intimidating, and did not University's constitute sexual a "solicitation" harassment 7 policy, the nor violate the discipline the No. 95-1592 University had imposed was excessive. However, the Commission also other found that Arneson had violated work rules which would have supported a suspension of no more than five days without pay. Of course, this discipline could not be maintained as the University had violated Arneson's right to due process. ¶19 Neither party appealed the Commission s ruling and order, and subsequently Arneson and the University entered into a settlement through which Arneson received monetary and equitable relief, attorneys' fees and costs. ¶20 Subsequently, Arneson filed the instant action in Dane County Circuit Court, the Honorable Moria G. Krueger, under 42 U.S.C. §§ 1983,5 monetary relief Thoftne, in damages, based 1985(3), from their on the and 1988, defendants individual seeking Jezwinski, capacities, allegations that declaratory they Meyer, including had and and punitive violated his constitutional right to due process of law when they disciplined him.6 Specifically, the complained-of deprivation of rights, as 5 42 U.S.C. § 1983 provides in relevant part: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof 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. 6 The named defendants were not named in Arneson's appeal of his discipline before the Personnel Commission. 8 No. described in defendants' Arneson's imposition complaint, of are excessive the 95-1592 following: discipline based on 1) an improperly investigated and false charge of sexual harassment without pre-disciplinary due process, and 2) defendants' failure to provide make-whole relief to plaintiff when ordered to do so by the Wisconsin Personnel Commission. Arneson has alleged that both actions were undertaken individually and in concert, were arbitrary and capricious, and infringed on his constitutionally protected property and liberty interests. ¶21 Arneson's claim that the defendants failed to provide make-whole relief when ordered to do so apparently had its roots in the negotiations that Arneson engaged in with the University following the Commission's decision that he be reinstated. The circuit court dismissed this claim on the defendants' motion for summary judgment, finding that Arneson had failed to provide any facts demonstrating that the defendants were involved in these negotiations. ¶22 The judgment claim. motion. that The also filed qualified circuit a motion immunity court for barred denied the summary Arneson's defendants' This is the issue with which we are now presented. ¶23 governing were defendants asserting remaining entitled This issue is not before us on appeal. In its decision, the circuit court identified the rule its to clearly qualified qualified immunity immunity established in inquiry: unless the the law, such the defendants plaintiff's that a are rights reasonable person would be aware that he or she was violating plaintiff's rights. Harlow v. Fitzgerald, 457 U.S. 800 (1982). 9 In deciding No. 95-1592 that the defendants were not entitled to qualified immunity, the circuit court looked to decisions of the Wisconsin Personnel Commission for the "clearly established" federal law governing the due process rights claimed by the plaintiff. ¶24 At the April 21, 1995, hearing on defendants' motion, the circuit court stated: I tend to agree with the defendants' reading of the federal cases; that there are some cases in which you might say that there are certainthat there are certain rights that should be given, but I think they're quite distinguishable, there are not bright lights out there in which I could say the defendants should have known this is really what they have done and we have the 7th Circuit cases I referenced earlier that suspension may well be a different animal than termination. So I can't look at those federal cases and say, yup, these defendants were on notice that they really better do this a certain way as regards Mr. Arneson. And on that basis . . . I can't look to the federal cases to make the decision. (emphasis supplied). ¶25 present The circuit court then requested that the defendants the court with Wisconsin Personnel Commission cases preceding the April 1990 discipline that would support their motion. is what The court also explained that "the issue I'm looking to should form the basis of determining what established law the defendants should have looked to." choices the circuit court clearly established law then considered were Wisconsin to be Personnel clearly The two relevant to Commission cases or the Wisconsin Statutes, and it asked the parties to submit letter briefs in response. 10 No. ¶26 95-1592 Before the circuit court, in support of a position that it has since apparently abandoned, the defendants argued that the clearly established law may be found in Personnel Commission decisions, and that those decisions predating 1990 demonstrate that the law did not clearly establish employee's right to a presuspension hearing. a state The circuit court disagreed with the defendants. ¶27 In denying the defendants' motion, the circuit court noted that some federal law supported Arneson's position that a suspension be Significantly, preceded though, the with a circuit due process court relied hearing. most heavily upon a decision of the Wisconsin Personnel Commission, noting as it did provided so that that a in Sixth an Circuit Court extraordinary courts" could establish the law. of Appeals case, decisions decision of "other See Ohio Service Employees Assn. v. Seiter, 858 F.2d 1171, 1177-78 (6th Cir. 1988). ¶28 1990, Relying then upon Commission decisions prior to April the circuit court found that Arneson's right to due process was clearly established at the time of his suspension, and, therefore, the defendants could not maintain a defense of qualified immunity. ¶29 order. The defendants appealed the circuit court's nonfinal The court of appeals declined leave to appeal, and then asked this court to determine under what circumstances denials of qualified immunity interlocutory appeals could be made. court granted the certification and held that This interlocutory appeals from a denial of qualified immunity on 42 U.S.C. § 1983 11 No. 95-1592 claims should always be allowed where the denial turns on legal issues and the appealing party timely files a petition for leave to appeal. Arneson v. Jezwinski, 206 Wis. 2d 217, 229, 556 N.W.2d 721 (1996). ¶30 On remand, the court of appeals, in an unpublished decision, found that both criteria for granting leave to appeal an interlocutory order were met in this case. appeals then reversed the circuit court and The court of held that the defendants were entitled to qualified immunity. ¶31 The court of appeals framed the issue before it as whether "at the time of Arneson's disciplinary transfer, either Wisconsin law or federal law clearly granted him an established 'property interest' either in the position he then occupied or in his former position, which would warrant the conclusion that the defendants did not enjoy qualified immunity from his lawsuit." The court concluded that neither Wisconsin nor federal law so provided. ¶32 The court observed that Arneson's claim was somewhat ambiguous: it could be read as a claim that he was deprived rights that accompanied his MIS 4 supervisor position, or in the alternative, a claim that he was deprived rights in his MIS 3 position. The court addressed both. It first found that Arneson had no rights in the MIS 4 supervisor position that were constitutionally protected. Turning to the second alternative, the court concluded that if Arneson was claiming rights to his original position, he had "essentially" been reinstated to that position following the Personnel Commission's finding that he 12 No. had not been accorded due process. The court of 95-1592 appeals believed that the post-disciplinary procedures by which Arneson was reinstated sufficient and due provided process back protection pay and provided that the him with defendants, therefore, were entitled to qualified immunity. ¶33 Arneson appealed that decision and we now affirm the court of appeals' conclusion that the defendants are entitled to qualified immunity. II ¶34 immunity Whether is a the defendants question of are law entitled that this to court qualified decides independently of and without deference to the reasoning of the lower courts. Penterman v. Wis. Elec. Power Co., 211 Wis. 2d 458, 468, 565 N.W.2d 521 (1997); Barnhill v. Board of Regents, 166 Wis. 2d 395, 406, 479 N.W.2d 917 (1992). It is a question that is appropriately resolved at the summary judgment stage, Penterman, 211 Wis. 2d at 468-69, and is appropriate when there are no genuine issues as to any material facts and the moving party is entitled to judgment as a matter of law. Wis. Stat. § 802.08(2) (1997-98).7 7 Wis. Stat. § 802.08(2) states in relevant part: The judgment sought shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. 13 No. ¶35 Qualified immunity is a judicial 95-1592 doctrine that protects government officials performing discretionary functions from civil liability so long as their conduct does not violate a person's clearly established statutory or constitutional right of which a reasonable person would have known. Harlow Fitzgerald, 457 U.S. at 818; Barnhill, 166 Wis. 2d at 406. qualified immunity inquiry "turns on the objective v. The legal reasonableness of the action, assessed in light of the legal rules that were clearly established at the time the action was taken." Barnhill, 166 Wis. 2d at 407 (citing Harlow, 457 U.S. at 818-19). As we explained in Barnhill: If the law was not clearly established on the subject of the action when it occurred, then the public official cannot be held to know or anticipate that the conduct was unlawful. On the other hand, if the law was clearly established, then the immunity defense should fail because a reasonably competent public official should have known that the conduct was or was not lawful. Id.; Harlow, 457 U.S. at 818-819. laws that are not clearly Officials who violate the established at the time of their actions, regardless of later evolution in the law, are entitled to qualified immunity. Cir. 1985). and Lojuk v. Johnson, 770 F.2d 619, 628 (7th To be clearly established, case law must clearly consistently recognize the constitutional right claimed. Id. Source of Clearly Established Law ¶36 The proceedings of this case in the courts below evince some confusion over the source of clearly established law 14 No. 95-1592 that is to govern a claim brought pursuant to 42 U.S.C. § 1983. Where a plaintiff alleges the violation of a constitutionally protected property interest in a job, two sources of law are considered, each which governs a separate part of the qualified immunity inquiry. plaintiff First, as has a substantive a threshold property issue, interest whether the his her in employment is determined exclusively by state law. or Board of Regents v. Roth, 408 U.S. 564, 577 (1972); Flynn v. Kornwolf, 83 F.3d 924, 926 (7th Cir. 1996); Vorvald v. School Dist. of River Falls, 167 Wis. 2d 549, 556, 482 N.W.2d 93 (1992). Therefore, whether the plaintiff has a property interest in his wages and in his continuous employment is a question to be answered by looking to state law. ¶37 However, "federal constitutional law determines whether that [substantive property] interest rises to the level of a 'legitimate Process Clause." U.S. 1, 9 claim of entitlement' protected by the Due Memphis Light, Gas & Water Div. v. Craft, 436 (1978) (citing Roth, 408 Sindermann, 408 U.S. 593, 602 (1972)). U.S. at 577; Perry v. Federal law governs the question of how much due process Arneson must be accorded before he is deprived of his property interests. the courts below expressed As have the parties, some uncertainty as to where the source of clearly established federal law on this question may be found. ¶38 The United States Supreme Court has not dispositively determined the question. The most definitive word it has offered may be found in Harlow, where the Court avoided the 15 No. 95-1592 question of what decisional law would establish the "state of the law," but implied that an evaluation of the federal law could only be made by reference to the decisions of the United States Supreme Court, the federal district courts. ¶39 The Dane federal courts of appeals, or the Harlow, 457 U.S. at 818 n.32. County Circuit Court, in deciding that Personnel Commission decisions could be the source of clearly established law, relied upon the following discussion from a Sixth Circuit Court of Appeals decision which stated that to find a clearly established constitutional right, a district court must find binding precedent by the Supreme Court, its court of appeals or itself. In an extraordinary case, it may be possible for the decisions of other courts to clearly establish a principle of law. For the decisions of other courts to provide such 'clearly established law,' these decisions must both point unmistakably to the unconstitutionality of the conduct complained of and be so clearly foreshadowed by applicable direct authority as to leave no doubt in the mind of a reasonable officer that his conduct, if challenged on constitutional grounds, would be found wanting. Seiter, 858 F.2d at 1177-78 (emphasis supplied, as it was in the circuit court decision). language is misplaced, The circuit court's reliance on this for the Seiter court's reference to "other courts" may include the persuasive authority of other circuit courts of appeals, and perhaps other district courts, but could certainly not administrative agencies. have referred to decisions of state See e.g., Anderson v. Romero, 72 F.3d 518, 525 (7th Cir. 1995)(the Seventh Circuit found unpersuasive the Sixth Circuit's "aside" that a district court could clearly establish the law). 16 No. ¶40 95-1592 We have discovered no cases in which the source of clearly established administrative Commission. federal agencies law such as included the decisions Wisconsin of Personnel And while Arneson relies in part on decisions of the Commission, he has provided us with no authority for his view that those federal law. decisions are authority on the question of Decisions of state administrative bodies do not create federal law; nor do they provide the contours of clearly established federal law. Hence, we do not consider these administrative decisions in determining whether the defendants knew what the clearly established federal law governing his due process rights was at the time they disciplined Arneson. ¶41 While of greatest value, a Supreme Court decision on "all fours" is not necessary to overcome a qualified immunity defense. In light of the Supreme Court's decision in Harlow which left unanswered the source of federal law, the Seventh Circuit has observed that "reliance on Supreme Court decisions alone might be inappropriate (unless they are the only cases ruling on comparison the to question), the decisions because of the they are infrequent district and in appellate courts, and this infrequency could have the practical effect of converting qualified immunity into absolute immunity." v. Allphin, 786 F.2d 268, 275 (7th Cir. 1986). Benson Furthermore, the United States Supreme Court has acknowledged when it was itself determining the source of clearly established law, that "for purposes clearly of determining established, the whether Court 17 a may constitutional look to the right law of was the No. relevant Siegert circuit v. at Gilley, the 500 time U.S. of the conduct in 226, 243 (1991)(citing 95-1592 question." Davis v. Scherer, 468 U.S. 183, 191-92 (1984)). ¶42 At a minimum, defendants should be held aware of the controlling authority of this state, as well as the persuasive authority found within the Seventh Circuit. the absence of controlling dispositive that the law authority is not on point clearly highly However, should not established. be See Donovan v. City of Milwaukee, 17 F.3d 944, 952 (7th Cir. 1994) (citing Cleveland-Perdue v. Brutsche, 881 F.2d 427, 431 (7th Cir. 1989)). Instead, where there is no controlling authority on point, the parties must point to "such a clear trend in the caselaw that [they] can say with fair assurance that the recognition of the right by a controlling precedent was merely a question of time." 431). what Id. (quoting Cleveland-Perdue, 881 F.2d at To so show, "rulings in other circuits are instructive on the law is as to constitutionally protected rights." Spreen v. Brey, 961 F.2d 109, 112 (7th Cir. 1992). But see Kolman v. Sheahan, 31 F.3d 429, 434, (7th Cir. 1994)(the court intimated that if the Seventh Circuit did not have an analogous case, the defendant would be qualifiedly immune for his or her actions). ¶43 In considering the weight to accord district court decisions, we recognize that by themselves, they cannot "clearly establish a constitutional right," Anderson, 72 F.3d at 525 (emphasis in the original)(citing Jermosen v. Smith, 945 F.2d 18 No. 547, 551 (2nd Cir. 1991)), precedents, no authority." for they "have no Anderson, 72 F.3d at 525. 95-1592 weight as However, [t]hey are evidence of the state of the law. Taken together with other evidence, they might show that the law had been clearly established. But by themselves they cannot clearly establish the law because, while they bind the parties by virtue of the doctrine of res judicata, they are not authoritative as precedent and therefore do not establish the duties of nonparties. Anderson, 72 F.3d at 525. ¶44 In summary, we believe that on the question governed by federal law, and with a view to the guidelines described above, this court should, as does the Seventh Circuit, "look to whatever decisional law is available to ascertain whether the law has been clearly established." 567, 570 (7th Cir. 1995)(citing McGrath v. Gillis, 44 F.3d Rakovich v. Wade, 850 F.2d 1180, 1209 (7th Cir. 1988)(en banc)). A "'sufficient consensus based on all relevant case law, indicating that the officials' conduct was unlawful' is required." DeRobertis, 940 F.2d 1055, 1058-59 Id. (quoting Henderson v. (7th Cir. 1991)(quoting Landstrom v. Illinois Dept. of Children & Family Serv., 892 F.2d 670, 676 (7th Cir. 1990))). III ¶45 Although qualified immunity is an affirmative defense, once raised, the plaintiff in a 42 U.S.C. § 1983 claim bears the burden of demonstrating by closely analogous case law that the defendants have violated his clearly established constitutional right. See Penterman, 211 Wis. 2d at 469 (citing Burkes v. Klauser, 185 Wis. 2d 308, 327, 517 N.W.2d 503 (1994)). 19 No. ¶46 95-1592 As a first step, we look to see whether plaintiff's complaint, even violation of plaintiff's when accepted constitutional claim fails. as true, rights. Lanigan states If v. it a cognizable does Village of not, East the Hazel Crest, Ill., 110 F.3d 467, 472 (7th Cir. 1997)(citing Young v. Murphy, 90 F.3d 1225, 1234 (7th Cir. 1996)). This is because "[a] necessary concomitant to the determination of whether the constitutional established' right at the asserted time by a the plaintiff defendant is acted 'clearly is the determination of whether the plaintiff has asserted a violation Siegert, 500 U.S. at 232. of a constitutional right at all." ¶47 In a section 1983 claim for a violation of procedural due process, a plaintiff must show a deprivation by state action of a constitutionally protected interest in "life, liberty, or property" without due process of law. Penterman, 211 Wis. 2d at 473 (citing Zinermon v. Burch, 494 U.S. 113, 125 (1990)). showing requires that there exists a liberty or This property interest which has been interfered with by the State and that the procedures constitutionally attendant upon insufficient. that Should interference Arneson were make this showing, in order to overcome the qualified immunity defense, he must also demonstrate that both the interest and the procedures attendant upon the deprivation established in 1990, defendants' positions such would that of 20 interest reasonable have violated Arneson's rights. his been were officials aware their clearly in the actions No. 95-1592 What property interests has Arneson alleged, and were those interests clearly established in 1990? ¶48 We note that the parties, and the courts below, did not coherently identify the precise property interest Arneson claimed. This interest must be clearly identified before we can engage in a consideration of the constitutional right Arneson claims has been violated. ¶49 and at Despite the defendants' arguments in both their briefs oral argument, we do not understand Arneson to be claiming any protected interest in his position as an MIS 4 supervisor. Instead, we find that the property interest which Arneson claims is constitutionally protected is related to his employment in the MIS 3 non-supervisor position he held prior to his promotion in January 1990. ¶50 At oral argument, Arneson admitted that he did not have a constitutionally protected property interest in his MIS 4 supervisory position, which he conceded was a position in which he served as a probationary employee pursuant to Wis. Stat. § 230.28(1)(a) and (am), and, therefore, a position in which he had no protection. We therefore direct our discussion to his argument that when he was promoted, he maintained his statutory rights to the position he held prior to the promotion, the nonsupervisor MIS 3 position. ¶51 explained In Roth, 408 U.S. 564, the United States Supreme Court that property interests are not created by the Constitution, but rather, "are created and their dimensions are defined by existing rules or understandings that stem from an 21 No. 95-1592 independent source such as state lawrules or understandings that secure certain benefits and that support claims of entitlement to those benefits." Id. at 577; see also, Vorvald, 167 Wis. 2d at 556 (in determining whether one has a property interest in a job, this court examines state law). Thus, the property interest Arneson had in his pre-promotion position, if any, is to be determined from an examination of the Wisconsin Statutes, governs and in particular State Employment Wis. Relations, Stat. as Chapter well as 230, our which case law interpreting the statutes. ¶52 Pursuant to Wis. Stat. § 230.34(1)(a), a person who has permanent status in class "may be removed, suspended without pay, discharged, reduced in base pay or demoted only for just cause." Wis. Stat. § 230.34(1)(a). dismissed only for continued "just employment which cause" is An employee who may be has a protected property by the interest due in process Loudermill, 470 U.S. at clause of the federal constitution. 538-41; see also State ex rel. DeLuca v. Common Council, 72 Wis. 2d 672, 678, 242 N.W.2d 689 (1976); Phares v. Gustafsson, 856 F.2d 1003, 1010 (7th Cir. 1988). The parties here do not dispute that as an MIS 3 employee just prior to his promotion, Arneson did have permanent status in class, and as such, a property interest in continued employment that was protected by the Due Process Clause of the Constitution. ¶53 The parties are also in agreement that the property interest an employee has in his or her supervisory position as a probationary promotion employee 22 is governed by Wis. Stat. No. 95-1592 § 230.28(1)(a) and (am) which together provide that an employee promoted to probationary a supervisory period, unless position waived must after serve six a one-year months, during which time, "dismissal may be made at any time" without cause. Wis. Stat. § 230.29 (1)(a) and (am).8 ¶54 The parties' point of dispute is the effect of the promotion, and the accompanying probationary period, on Arneson's property interests in his pre-promotion position, the only position protection. for which Arneson is claiming constitutional The defendants argue that when Arneson was promoted from his MIS 3 position to the MIS 4 supervisor position, he forfeited his permanent status that he held as an MIS 3 employee. That is, they argue that Arneson lost the protection of his permanent status with his promotion when he fell subject to the probationary period all promoted employees to supervisory positions are subject to under Wis. Stat. § 230.28(1)(a) and 8 Wis. Stat. § 230.28(1)(a) provides in relevant part: All original and all promotional appointments to permanent, sessional and seasonal positions, with the exception of those positions designated as supervisor or management under s. 111.81, in the classified service shall be for a probationary period of 6 months . . . . Dismissal may be made at any time during such periods. Wis. Stat. § 230.28(1)(am) provides in relevant part that "[a]ll probationary periods for employes in supervisory or management positions are one year unless waived after 6 months . . . ." 23 No. (am). 95-1592 In their view, any permanent employee could be terminated without cause upon that employee's acceptance of a promotion, regardless of that employee's length of service with the state. ¶55 The defendants are in error, for they have not given appropriate weight to Wis. Stat. § 230.28(1)(d), which must be read in pari materia with § 230.28(1)(a) and (am). the subsection here in determining the extent We consider of Arneson's property interests in his employment: A promotion or other change in job status within an agency shall not affect the permanent status in class and rights, previously acquired by an employe within such agency. Wis. Stat. § 230.28(1)(d). ¶56 acquired When Arneson was promoted within ADP, he had already permanent status in class and rights as an MIS 3 employee and therefore he retained his permanent status pursuant to the dictates of Wis. Stat. § 230.28(1)(d). And as an employee with permanent status in class, the defendants were required to abide by Wis. Stat. § 230.34(1)(a) when they disciplined him, just as they would have been required to do when disciplining any other permanent status employee. ¶57 Despite the statute's unambiguous and express language, the defendants maintain that our decision in DHSS v. State Personnel Bd., 84 Wis. 2d 675, 267 N.W.2d 644 (1978), requires a different outcome. They argue that under DHSS, Arneson forfeited his property interest in permanent employment with the ADP when he was promoted because the case precludes any 24 No. 95-1592 promoted state employee from carrying with him or her to his or her new position the previously acquired permanent status. ¶58 The defendants misread our decision in DHSS, which, in fact, supports Arneson. In DHSS, this court was presented with, among other issues, the question of whether the State Personnel Board had jurisdiction to hear the plaintiff's appeal alleging that his discharge from classified employment was not for just cause. service within state As here, the plaintiff in DHSS had acquired permanent status in class prior to accepting a promotion. While in the statutorily-defined probationary period governing the promoted position, the plaintiff was terminated. The plaintiff appealed the dismissal, requesting of the board consideration of whether his termination was with cause. ¶59 This court held that the board only had jurisdiction to hear appeals from employees with permanent status in class, DHSS, 84 Wis. 2d at 680, and that the plaintiff, due to his promotion, did not have such permanent status due to his "interdepartmental promotion." ¶60 Id. at 680-82. In determining that the plaintiff did not have any permanent status, this court first turned to the predecessor of the current Wis. Stat. § 230.28(1)(a), Wis. Stat. § 16.22(1)(a) (1975), which provided that "[a]ll original and all promotional appointments to permanent . . . positions in the classified service shall be for a probationary period of 6 months. . . . Dismissal may be made at any time during such periods." recognized that an § 16.22(1)(d)(1975), exception the to § 16.22(1)(a) equivalent 25 of We then appeared the in current No. § 230.28(1)(d), which provided that "[a] promotion 95-1592 or other change in job status within a department shall not affect the permanent status in class and rights, previously acquired by an employe within such § 16.22(1)(d)(1975). In department." considering how Wis. the two Stat. provisions worked with one another, we stated that [s]ec. 16.22(1)(a) and (d), Stats., requires that promotional appointments in the classified service are subject to a six month probationary period, and possible discharge from the classified service. If an employe is promoted within a department, he may be dismissed from the new position during the probationary period. If dismissal from the new position occurs, the employe must be reinstated to his former position or a similar position within that department. There is no effect on, '. . . permanent status in class and rights, previously acquired,' if the promotion is intra-departmental. DHSS, 84 Wis. 2d at 681 (emphasis supplied). We then held that the plaintiff in DHSS did not have permanent status in class because the plaintiff in DHSS was promoted inter-departmentally and therefore forfeited his permanent status previously attained. ¶61 Quite unlike the plaintiff in DHSS, Arneson was promoted within the same agency in which he first attained his rights in class.9 Under the express language of the statute, and 9 We note that one difference between Wis. Stat. § 16.22(1)(d)(1975) and the current Wis. Stat. § 230.28(1)(d) is that in the earlier version of the statutes, an employee retained his or her permanent status when promoted within the same "department," whereas in the current version, an employee retains his or her permanent status when promoted within the same "agency." 26 No. 95-1592 our interpretation of the statute in DHSS, it is clear that Arneson retained his permanent status in class and rights as an MIS 3 non-supervisor agency, from an MIS supervisor position. in class when 3 he was promoted, non-supervisor within position the to an same MIS 4 Because he retained this permanent status and rights, any discipline affecting his class and rights in his MIS 3 position could be maintained only for "just cause" in accord with Wis. Stat. § 230.34(1)(a). Therefore, Arneson had a property interest in his MIS 3 position that was clearly established in April 1990. ¶62 Our inquiry on qualified immunity must do more than reach this conclusion, however. As Arneson was not terminated from his job, he cannot be claiming a property interest in his continued employment, the property when an employee is terminated. interest that is affected Instead, we find the following: First, his allegation that he was demoted without due process of law is a claim that he has a property interest in the amount of wages commensurate with the MIS 3 position. Second, his allegation that he was suspended without pay without due process of law is a claim that he has a property interest in continuous employment. In other words, this latter claim is that he had a significant private interest in the uninterrupted receipt of his paycheck. See Ibarra v. Martin, 143 F.3d 286, 289 (7th Cir. 1998); see also Gilbert v. Homar, 520 U.S. 924, 932 (1997). What procedural safeguards are attendant upon state interference with property interests in continuous employment and wages, and were those safeguards clearly established in 1990? 27 No. ¶63 95-1592 The defendants argue that neither of these property interests are protected by the constitution, relying upon the recent United States Supreme Court decision in Gilbert in which the Court wrote that although it had "previously held that public employees who can be discharged only for cause have a constitutionally protected property interest in their tenure and cannot be fired without due process, [it has] not had occasion to decide whether the protections of the Due Process Clause extend to discipline of tenured employees short of termination." Gilbert, 520 U.S. at 928-29 (internal citations omitted). defendants suggest that this statement by the Court in The 1997 dispositively demonstrates that the law in 1990 did not clearly establish a tenured employee's right to due process prior to discipline short of termination. ¶64 We disagree. As early as 1972, federal law clearly established that a property interest arises for the purposes of the due process clause, that is, the property interest is constitutionally protected, "if there are such rules or mutually explicit understandings that support [a] claim of entitlement to the benefit . . . ." supplied). and, Sindermann, 408 U.S. at 601 (emphasis Wisconsin Stat. § 230.34(1)(a) provides these rules, accordingly, the due process clause protections accompany demotions and suspensions with pay. must See Williams v. Com. of Ky., 24 F.3d 1526, 1538 (6th Cir. 1994)("Supreme Court cases decided before [May 1991] are clear that [statutes providing that classified employees can't be dismissed, demoted, suspended or otherwise penalized 28 except for cause] create No. 95-1592 property interests protected by the Fourteenth Amendment."); see also Sower v. City of Fort Wayne, Indiana, 737 F.2d 622, 624 (7th Cir. 1984) (firefighters who by statute and ordinance could not be demoted without just cause had a property interest which they could not be deprived of without due process of law). ¶65 Therefore, since Arneson had a property interest in both the wages which are commensurate with his MIS 3 position and in continuous employment within the MIS 3 position, and these property interests were clearly established in 1990, they were protected by the Due Process Clause and the State could not interfere with them without according him the process he was due. ¶66 applies, "Once it is determined that the Due Process clause 'the question remains what process is due.'" Loudermill, 470 U.S. at 541 (citing Morrissey v. Brewer, 408 U.S. 471, 481 (1972)). The amount of process due is a matter of federal constitutional law. ¶67 interests Loudermill, 470 U.S. at 541. So far, we have concluded that Arneson had property which were protected by the due process clause. However, this finding does not sufficiently identify the precise nature of the claimed constitutional violation. To present a cognizable claim, Arneson must also show that the amount of due process that defendants were required to accord him was clearly established in 1990. ¶68 It is not enough that Arneson allege a violation of a constitutional right in the abstract. 29 The constitutional right No. alleged to be violated must be specific. 95-1592 As the Supreme Court has stressed, the right to due process of law is quite clearly established by the Due Process Clause, and thus there is a sense in which any action that violates that Clause (no matter how unclear it may be that the particular action is a violation) violates a clearly established right. Much the same could be said of any other constitutional or statutory violation. But if the test of "clearly established law" were to be applied at this level of generality, it would bear no relationship to the "objective legal reasonableness" that is the touchstone of Harlow. Plaintiffs would be able to convert the rule of qualified immunity that our cases plainly establish into a rule of virtually unqualified liability simply by alleging violation of extremely abstract rights. Anderson v. Creighton, 483 U.S. 635, 639 (1987). ¶69 "'In a procedural due process claim, it is not the deprivation of property or liberty that is unconstitutional; it is the deprivation of property or liberty without due process of lawwithout adequate procedures'" that is unconstitutional. D'Acquisto v. Washington, 640 F.Supp. 594, 606 (1986)(quoting Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 678-679 (1986)(Stevens, J., concurring)(emphasis in the original)). the adequacy demotion were of procedures not attendant clearly upon established a in suspension 1990, then If and the defendants are entitled to qualified immunity. ¶70 In order to show that the law was "clearly established" for qualified immunity purposes, "[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he [or she] is doing violates that 30 No. 95-1592 right . . . [I]n light of pre-existing law the unlawfulness must be apparent." F.3d at Anderson, 483 U.S. at 640; see also McGrath, 44 570. "[T]he 'clearly established law' must be sufficiently analogous [to the plaintiff's current situation] to provide the public official with guidance as to the lawfulness of his or her conduct." Barnhill, 166 Wis. 2d at 408. The law must be clear in relation to the specific facts confronting an official at the time of the official's action. Rakovich, 850 F.2d at 1209 (citing Colaizzi v. Walker, 812 F.2d 304, 308 (7th Cir. 1987)). ¶71 In this particular reasonable official would case, have we known must that decide the whether holding of a an informal meeting, before which Arneson knew that a particular female subordinate employee had made a complaint against him concerning sexual harassment, and during which Arneson was asked specific questions regarding his interest in taking photos of the employee employee's and her sister allegations and was told to the extent except nothing that about they the were corroborated by Arneson's statements, and Arneson was informed of a broad complaint near established employee range due prior of the discipline end process to of the rights suspension that meeting, that and could were result violated to demotion. be from clearly accorded See the Price an v. Brittain, 874 F.2d 252, 260 (5th Cir. 1989) (citing Anderson, 483 U.S. at 107). ¶72 Arneson relies almost exclusively upon Loudermill as clearly established law that at a minimum, he was entitled to 31 No. 95-1592 notice and an opportunity to respond to the charges prior to his discipline. In Loudermill, the Court held that prior to termination, "[t]he tenured public employee is entitled to oral and written notice of the charges against him, an explanation of the employer's evidence, and an opportunity to present his side of the story." Id. As the Court explained: An essential principle of due process is that a deprivation of life, liberty, or property 'be preceded by notice and opportunity for hearing appropriate to the nature of the case.' Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313 (1950). We have described 'the root requirement' of the Due Process Clause as being 'that an individual be given an opportunity for a hearing before he is deprived of any significant property interest.' Boddie v. Connecticut, 401 U.S. 371, 379 (1971)(emphasis in the original); see Bell v. Burson, 402 U.S. 535, 542 (1971). This principle requires 'some kind of hearing' prior to the discharge of an employee who has a constitutionally protected property interest in his employment. Loudermill, 470 U.S. at 542. ¶73 The defendants disagree with Arneson that Loudermill is dispositive and argue that the facts of Loudermill are not sufficiently defendants analogous to make to them the circumstances aware that they then would facing the violate his constitutional rights by providing the process that they in fact gave him. They argue that the minimum due process requirements as set forth in Loudermill are applicable only where a person is terminated from his or her tenured position. Therefore, Loudermill is not clearly established law on the question before 32 No. this court because Arneson was not terminated 95-1592 from his employment. ¶74 We agree with the defendants that Loudermill does not involve property interests which are as significant as one's continued employment, and therefore Loudermill does not clearly establish the termination. this process due an employee disciplined short of The Court's discussion in Loudermill foreshadowed conclusion when it stated that "'[t]he formality and procedural requisites for the hearing can vary, depending upon the importance of the interests involved and the nature of the Loudermill, 470 U.S. at 545 (quoting subsequent proceedings'" Boddie v. Connecticut, 401 U.S. 371, 378 (1971)). ¶75 We do recognize that a 30-day suspension without pay and a permanent reduction in pay of nearly $3 per hour is a significant property interest that must be safeguarded. However, it is not as significant as the severity of depriving someone of the means of livelihood, as is the result in a termination. ¶76 The United States Supreme Court has emphasized repeatedly that due process is a flexible concept in that its requirements vary depending on the circumstances of each case. Gilbert, 520 U.S. at 930 (citing Morrissey, 408 U.S. at 481). It "is not a technical conception with a fixed content unrelated to time, place and circumstances." Restaurant Indeed, Workers the v. Court's McElroy, decisions, 33 367 Id. (citing U.S. 886, including its Cafeteria 895 & (1961)). decision in No. Loudermill, have recognized that the determination 95-1592 of what process is due includes the balancing of three distinct factors: 'First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest.' Mathews v. Eldridge, 424 U.S. 319, 335 (1976). Gilbert, 520 U.S. at 931-32; see also Loudermill, 470 U.S. at 542-543. ¶77 Because balancing of competing interest is necessary, plaintiffs face a high hurdle in demonstrating that the law is clearly established in courts of appeals constitutional any have violations given case. observed that The that require federal circuit "allegations courts to of balance competing interests may make it more difficult to find the law 'clearly established.'" Medina v. City and County of Denver, 960 F.2d 1493, 1498 (10th Cir. 1992)(citations omitted). And as the Seventh Circuit has explained: it would appear that there is one type of constitutional rule, namely that involving the balancing of competing interests, for which the standard may be clearly established, but its application is so fact dependent that the "law" can rarely be considered "clearly established." In determining due-process requirements for discharging a government employee, for example, the courts must carefully balance the competing interests of the employee and the employer in each case. Thus, the Supreme Court has consistently stated that one can only proceed on a case-by-case basis and that no allencompassing procedure may be set forth to cover all situations. It would appear that, whenever a balancing of interest is required, the facts of the 34 No. 95-1592 existing caselaw must closely correspond to the contested action before the defendant official is subject to liability under the [sic] Harlow. . . . [Q]ualified immunity typically casts a wide net to protect government officials from damage liability whenever balancing is required. 786 Benson, F.2d at 276 (internal citations and footnotes omitted). ¶78 Of course, that balancing is required is not to say that defendants will always be entitled to qualified immunity, for there are some circumstances in which the law is so clearly established as to leave no doubt in an official's mind that his or her action instance, would given violate Loudermill, a constitutional where the state right. has no For arguably significant interest in quick discipline, a tenured employee's interest in continued employment is of such significance that he or she must receive the requirements of Loudermill. have already noted, the facts of the instant But as we case are not sufficiently analogous to those in Loudermill for that case to present the defendants with clearly established law on the circumstances they then faced. ¶79 Arneson analogous law rights are extent that property agree. argues which in argues interests he established implicated he that has in April suspensions that protected and suspensions by the Due identified 1990 that demotions. and closely property To the demotions are Process Clause, we However, the cases are not closely analogous law on the question of how much due process the defendants were required to give him. Castelaz v. City of Milwaukee, 94 Wis. 2d 513, 520- 35 No. 95-1592 23, 289 N.W.2d 259 (1980), Hanson v. Madison Services Corp., 150 Wis. 2d 828, 840-46, 443 N.W.2d 315 (Ct. App. 1989), and McGraw v. City of Huntington Beach, 882 F.2d 384, 389 (9th Cir. 1989), each involve short of employees termination, termination due who and process were terminated, discuss, as does requirements. not disciplined Loudermill, They are, as preis Loudermill, not clearly analogous on the question the defendants faced. And while Narumanchi v. Bd. of Trustees of Connecticut State Univ., 850 F.2d 70 (2nd Cir. 1988), and Gillard v. Norris, 857 F.2d 1095 (6th Cir. 1988), both involve employees who were disciplined short of termination, neither establishes the minimum process due such an employeeat best they stand for the proposition that some due process must be provided an employee, and even without then pay the for court three in days Gillard was de employee to no procedural safeguards. ¶80 Williams The v. Court of Appeals Commonwealth of held that minimus and a suspension entitled the Id. at 1098. for the Kentucky, 24 Sixth F.3d Circuit, 1526 in (1994), provides us with a helpful inquiry into a qualified immunity defense under circumstances similar to those here. In Williams, the court was faced with the question of whether defendants were entitled to qualified immunity when they did not give the process due under Loudermill prior to demoting an employee. The court agreed with the defendants in the action that "[b]ecause the process due varies with the quality and extent of the deprivation of a property right . . . Loudermill did not clearly 36 No. 95-1592 establish that [plaintiff] had a right to notice and hearing before her demotion." Id. at 1539. The court wrote: 'Not every deprivation of liberty or property requires a predeprivation hearing or a federal remedy.' Ramsey v. Board of Educ., 844 F.2d 1268, 1272 (6th Cir. 1988). In fact, the Loudermill Court noted that '[t]here are, of course, some situations in which a postdeprivation hearing will satisfy due process requirements.' Loudermill, 470 U.S. at 542 n.7, [] (citing Ewing v. Mytinger & Casselberry, Inc., 339 U.S. 594, [] (1950) and North Am. Cold Storage Co. v. Chicago, 211 U.S. 306 [] (1908)). Because determining what process is due in a given case involves the balancing of several interests, including the nature of the property interest involved, we cannot say that a reasonable public official should have known from the Loudermill case that its requirement of notice and hearing prior to termination of employment applied with equal force to a demotion. Id. Since it did not believe that Loudermill was the closely analogous case required to clearly establish the law, the court then searched for opinions of its own circuit, and the opinions of other circuits, to find a case that did clearly establish that Loudermill predeprivation requirements apply to demotions. ¶81 own The court found unhelpful the two cases decided by its circuit which "merely state the rule of Loudermill determine that the rule was complied with in those cases." at 1540. and Id. It also found that in two other circuits (First and Fifth), that through dicta they had indicated without discussion that they would apply Loudermill to demotions. Id. at 1541. These cases were also considered not to have clearly established federal law on the question. 37 No. ¶82 95-1592 The court did find two cases from outside the Sixth Circuit in which district courts, following a balancing of the competing interests, found that a tenured public employee is entitled to a Loudermill hearing before being demoted. Id. (citing Williams v. City of Seattle, 607 F.Supp. 714, 720-21 (W.D. Wash. 1985); DelSignore v. DiCenzo, 767 F.Supp. 423, 42728 (D.R.I. 1991)). However, it found that these two decisions were "not 'so clearly foreshadowed by' Loudermill or opinions in [the Sixth Circuit] 'as to leave no doubt in the mind of a reasonable officer that' not giving a tenured employee notice and hearing before a demotion would violate the employee's due Id. (citation omitted). process rights." ¶83 We have found that Seventh Circuit cases, decided following Arneson's discipline, serve as evidence that the due process requirements attendant upon deprivations of property interests less significant than continued employment may be less than that required of Loudermill for terminated employees. Domiano v. 1990), the tenured Village Seventh employee termination of was Grove, Circuit the a River considered courtesy violation pretermination hearing. 904 of of a the F.2d 1142 whether telephone employee's (7th In Cir. providing call right a before to a The court found that such a violation had occurred, but it also intimated that without running afoul of the due process clause, the employer could have suspended the employee without a hearing until he had an opportunity to respond. Id. at 1149. And had the employer provided the employee with a post-termination hearing, the court stated that 38 No. 95-1592 the necessary scope of its pretermination hearing would also have been narrower. ¶84 In Id. another case, the Seventh Circuit explicitly partook of the balancing of interests under the test in Mathews. In Chaney v. Suburban Bus Division of the Regional Transportation Authority, 52 F.3d 623 (7th Cir. 1995), the court reviewed the due process procedures required to support a suspension of a bus driver who was involved in an accident. Following the accident, and without a hearing, the bus driver was suspended immediately without pay pending the results of Id. at 626. alcohol and drug tests. Even after the results of the test proved that the driver had not been under the influence of either continued. ¶85 substance, his suspension and the investigation Id. After weighing the three Mathews' factors, and concluding that the state had a greater interest in the safety of the public than the driver in his continuous employment, the court held that the prior notification to the driver that he would remain suspended pending further investigation was deemed sufficient due process under the circumstances: [W]e have little trouble concluding that due process did not mandate giving [the driver] additional notice or a hearing before [the employer] suspended him. The [driver's] interest in avoiding a suspension is significant. Nonetheless, the [driver] was on notice as to why he was being suspended and [the employer's] interest in both managerial efficiency and in public safety clearly outweigh [the driver's] interest in a presuspension hearing. The Constitution does not mandate additional protections at this stage. 39 No. 95-1592 Id. at 628. ¶86 While both of the Seventh Circuit cases, and Williams in the Sixth Circuit, were decided following the defendants' discipline of Arneson and cannot be used to show whether the law was clearly established in 1990, they do serve as evidence that in 1990 the breadth of Loudermill was unclear as to the question of the necessary process due an employee prior to discipline short of termination. As the court in Williams stated: Although Loudermill's analysis should be applied to determine if [the plaintiff] was entitled to a predeprivation hearing, it is not yet clear how this analysis would come out in the demotion setting as opposed to the discharge setting. Loudermill recognized that there are some property interests for which a postdeprivation hearing will satisfy due process, but by balancing the competing interests the Court found that a predeprivation hearing must be provided before a tenured public employee is discharged. In a demotion case the balancing of competing interests may or may not compel a different result. Williams, 24 F.3d at 1541. ¶87 governing We cannot say that given the ambiguity of the case law suspensions unlawfulness of not and demotions providing a in 1990 predemotion or that the presuspension hearing would have been apparent to a reasonable official at the time Arneson was disciplined. ¶88 See Williams, 24 F.3d at 1541. Under the specific circumstances of this case, we find that in 1990, federal law did not clearly establish the amount of due process a tenured employee was entitled to receive prior to being suspended and demoted. entitled to qualified immunity. 40 Therefore, the defendants are Although we agree with the No. 95-1592 result reached by the court of appeals, we do so on different grounds. By the Court. The decision of the court of appeals is did not affirmed. ¶89 CHIEF JUSTICE SHIRLEY participate. 41 S. ABRAHAMSON 1
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