In the

United States Court of Appeals

For the Seventh Circuit

No. 13-2302

KEVIN R. CARMODY,

Plaintiff-Appellant,

v.

BOARD OF TRUSTEES OF THE UNIVERSITY OF ILLINOIS, et al.,

Defendants-Appellees.

Appeal from the United States District Court for the 

Central District of Illinois.

No. 12-CV-2249 — Michael P. McCuskey, Judge.

ARGUED DECEMBER 3, 2013 — DECIDED MARCH 28, 2014

Before POSNER, MANION, and HAMILTON, Circuit Judges.

HAMILTON, Circuit Judge. Plaintiff Kevin Carmody worked

for the University of Illinois for 25 years until he was fired for

reasons involving a security breach of the university’s email

system. After unsuccessfully appealing his discharge,

Carmody filed this suit against the university’s board of

trustees and several university officials claiming that they

violated his rights under the Due Process Clause of the
2 No. 13-2302

Fourteenth Amendment and under an Illinois statute designed

to protect whistle-blowers. The district court dismissed

Carmody’s complaint with prejudice under Federal Rule of

Civil Procedure 12(b)(6) for failure to state a claim upon which

relief can be granted. Carmody has appealed.

We review de novo a district court’s grant of a motion to

dismiss, construing the complaint in the plaintiff’s favor. Sung

Park v. Indiana Univ. School of Dentistry, 692 F.3d 828, 830 (7th

Cir. 2012). While we take the facts alleged in the complaint to

be true, we also consider attached exhibits and take into

account any contradictions. Phillips v. Prudential Ins. Co. of

America, 714 F.3d 1017, 1019–20 (7th Cir. 2013). For a case at the

pleading stage, we have here an unusually detailed record of

events because the complaint includes numerous exhibits

regarding Carmody’s termination.

We conclude that the district court’s dismissal was premature with respect to one aspect of Carmody’s due process

claim: that he was not given an adequate pre-termination

hearing. Carmody has plausibly alleged that his pre-termination opportunity to be heard was meaningless because he

could not answer the university’s crucial questions orrespond

to its accusations without violating a state court order that

required him not to discuss the key subject. The university

acted to fire Carmody on the same day the state court modified

its order to allow him to respond to the charges, so the modification came too late to help him. Also, Carmody has alleged

that he was actually fired based in part on a charge for which

he had no prior notice and opportunity to be heard. We

therefore reverse this one portion of the district court’s
No. 13-2302 3

judgment and remand the case for further proceedings. We

affirm the judgment in all other respects. 

I. Sufficiency of the Pre-Termination Process

A. Factual Allegations

For the last 22 years of Carmody’s employment with the

University of Illinois, he was manager of systems services in

the Department ofIndustrial and Enterprise Systems Engineering. According to Carmody’s complaint and numerous

attached exhibits, the university’s official reasons forfiring him

involved a security breach of the university’s email system, a

breach connected to a state court lawsuit Carmody was then

pursuing against a university professor, David Goldberg.

Carmody says that while his lawsuit against Professor

Goldberg was pending, he discovered several printed emails

in the newspaper box outside his home. The emails contradicted an affidavit that Professor Goldberg’s defense attorney

had filed in the case, an affidavit by another professor,

Deborah Thurston. Carmody gave the emails to his lawyer,

who then filed a motion of some kind to which he attached the

emails, designating them “Group Exhibit A.” Carmody denies

knowing how the emails came to be in his newspaper box.

(Carmody’s claim in his lawsuit against Goldberg was apparently that the professor had assaulted him, though the nature

of the claim is irrelevant to Carmody’s firing and the case

before us. Carmody’s suit against Goldberg has since been

dismissed.)

The emails Carmody found were between university

employees, including Professor Thurston, and all of them
4 No. 13-2302

concerned Professor Goldberg. According to Carmody’s

federal complaint, the state court judge ordered as follows

regarding the emails:

[T]he Court is going to order that Group Exhibit A

[the Thurston emails] be placed under seal pending

litigation of any further claims of privilege or relevance, and the Court is further going to enter a

protective order on the parties that there is to be no

secondary dissemination of any of the contents of Group

Exhibit A as the court has described them, beyond the

respective litigation files of the three lawyers here. 

(Emphasis added.) The three lawyers were Carmody’s lawyer,

Goldberg’s lawyer, anda lawyer for Thurston. Both professors’

lawyers were provided by the university.

Carmody then received a pre-termination letter dated July

19, 2010. It explained that he was being investigated for

misconduct, that he was suspended with pay immediately, and

that if the charges spelled out in the letter were substantiated,

they could result in discipline up to and including immediate

termination of employment. As far as the substance of the

charges went, the letter said:

It is alleged that you attempted to use the substance

of the email messages for non-University related

purposes and without permission. Furthermore,

there are open questions regarding how you came to

be in possession of these documents, specifically

whether you obtained them through improper

access.
No. 13-2302 5

The July 19 letter went on to say that Carmody would have an

opportunity to respond to the charges at a meeting later that

month. 

On July 28th, university officials held a pre-termination

meeting with Carmody, who brought his lawyer, Robert

Kirchner. At that meeting, Carmody alleges, the university

officials said they intended to question him about the contents

of the emails in Group Exhibit A. Keeping in mind that we are

reviewing a Rule 12(b)(6) dismissal, we must give Carmody

the benefit of conflicting information and allegations about

what happened in the meeting. We therefore assume that

university officials intended to question Carmody about the

contents of the emails, as well as how he received them, and

that both subjects were important to the pending decision

about what action to take against Carmody.

Carmody’s lawyer summarized his version of the meeting

in an August 3 letter to counsel for the university:

This letter will summarize the meeting of July 28th,

in which you were a participant. [Two university

officials] had advised, and you then confirmed that

they were in possession of a copy of a document

ordered sealed by Judge Leonard and that you, and

they, intended to questionKevin Carmody about the

contents of, and substance contained in, that document. I advised that I would not permit Mr.

Carmody to violate Judge Leonard’s order by

discussing or disclosing the contents of the sealed

materials and that by insisting that he do so, University personnel would be acting in violation of the
6 No. 13-2302

order as well. You disagreed and advised that the

“University is not a party to that case.” We adjourned the meeting with an agreement that I would

send this letter to you, await your reply, and then

seek direction from the Court. I will await your

reply. 

The university’s counsel wrote in response:

You are correct in that the University has copies of

“Exhibit A,” which consist of University documents.

The University is now investigating whether or not

any University policies have been violated and/or

security measures breached in the acquisition or use

of those documents. [University officials] attempted

to ask your client questions about the documents in

his possession, which he declined to answer because

of your interpretation of the Judge’s ruling.

I advised that I did not interpret the Judge’s ruling

as you did. It is my understanding that the Judge

sealed the documents ... because of the concerns

with how the documents were obtained ... . I do not

believe it was the intent of the Judge to prevent the

University from using its documents as necessary in

order to determine if there has been a breach of

University security and/or a breach of trust and

responsibility of any University employees ... .

I would be happy to join you in a motion for clarification of the judge’s order if you feel that is necessary. In the meantime, the University will proceed

with its investigation. If your client reconsiders
No. 13-2302 7

participating in this process, please let me know.

Otherwise, his refusal to participate may be considered in the investigation. 

Attorney Kirchner began efforts to modify the state court

order to allow Carmody to respond to the university’s accusations and threat of termination. The record does not reflect

whether he took the university’s lawyer up on her offer to join

him in a motion for clarification, though the court modified its

order about two months later, on the same day that Carmody

was fired.

The investigation was conducted by the university’s

Academic Human Resources department and was completed

in early September 2010. The investigators submitted a report

on September 7 to university officials. They recommended that

Carmody’s employment be terminated. The report explained

that, regardless of how Carmody had obtained the emails in

Group Exhibit A, “he did not immediately report the breach of

security” that must have been perpetrated. Carmody also had

“attempted to use the substance of the email messages ... for

non-University purposes and without permission,” and it was

“more probable than not that Mr. Carmody obtained the

documents in ‘Group Exhibit A’ through improper access.” 

On September 9, attorney Kirchner sent a letter to two

university lawyers regarding the September 7 report. He

contended that the recommendation to fire his client was based

in part on a new charge: that Carmody had failed to report a

security breach upon receiving the emails. Kirchner asked for

an opportunity for Carmody to respond to this new charge.

Carmody alleges that no opportunity was provided. 
8 No. 13-2302

Notice was sent to Carmody on September 23, 2010 that his

employment was terminated. The letter also said he could

appeal that decision to the associate provost for human

resources. According to Carmody’s complaint, the state court

lifted its restrictions on discussing Group Exhibit A the very

day he was fired. 

In his complaint in this federal case, Carmody alleges that

he was not given sufficient notice and opportunity to respond

to the charges against him before he was fired. The district

court concluded that Carmody had not stated a due process

claim because he had been given an opportunity to respond to

the charges at the July 28 meeting but declined to take it.

Carmody v. Board of Trustees of the Univ. of Illinois, No. 12-CV2249, 2013 WL 2145878, at *8 (C.D. Ill. May 15, 2013). Moreover,

the court explained, Carmody had adequate notice before that

meeting of the charge that he failed to report a security breach.

Although the charge was not explicitly leveled until after the

meeting, Carmody was aware that his possession of the emails

was being investigated. According to the court, that was

sufficient notice of the later charge of failure to report a

security breach. Id. at *9.

B. Analysis

A public employee who can be fired only for good cause

has a property interest in his or her job and may be deprived

of that property interest only with due process of law. See

Gilbert v. Homar, 520 U.S. 924, 928–29 (1997); Cleveland Board of

Educ. v. Loudermill, 470 U.S. 532, 538–39 (1985); Board of Regents

of State Colleges v. Roth, 408 U.S 564, 576–78 (1972); Harbaugh v.

Board of Educ. of City of Chicago, 716 F.3d 983, 986 (7th Cir. 2013).
No. 13-2302 9

For purposes of the motion to dismiss and this appeal, the

parties agree that Carmody had a property interest in his job.

The university therefore could not deprive him of that property without due process of law.

“The fundamental requirement of due process is the

opportunity to be heard ‘at a meaningful time and in a meaningful manner.’” Mathews v. Eldridge, 424 U.S. 319, 333 (1976),

quoting Armstrong v. Manzo, 380 U.S. 545, 552 (1965); see

Baird v. Board of Educ. for Warren Cmty. Unit School Dist. No. 205,

389 F.3d 685, 690 (7th Cir. 2004); Schultz v. Baumgart, 738 F.2d

231, 235 (7th Cir. 1984). The nature and extent of the process a

public employee is due before termination depend on the

adequacy of any post-termination hearing that was available.

Loudermill, 470 U.S. at 545–46; Bodenstab v. County of Cook,

569 F.3d 651, 663 (7th Cir. 2009). Because we conclude in Part

II below that Carmody was given a full opportunity to contest

his firing in a post-termination hearing, before he was fired he

was entitled under Loudermill to only “oral or written notice of

the charges against him, an explanation of the employer’s

evidence, and an opportunity to present his side of the story.”

Loudermill, 470 U.S. at 546. 

Even where there is a robust post-termination procedure,

though, a meaningful opportunity to be heard before the

employer decides on termination is a critical protection. The

purpose of a pre-termination hearing is to provide “an initial

check against mistaken decisions—essentially, a determination

of whether there are reasonable grounds to believe that the

charges against the employee are true and support the proposed action.” Loudermill, 470 U.S. at 545–46. Additionally,

“[e]ven where the facts are clear, the appropriateness or
10 No. 13-2302

necessity of the discharge may not be; in such cases, the only

meaningful opportunity to invoke the discretion of the

decisionmaker is likely to be before the termination takes

effect.” Id. at 543; accord, Hudson v. City of Chicago, 374 F.3d

554, 560 (7th Cir. 2004); Duchesne v. Williams, 849 F.2d 1004,

1008 (6th Cir. 1988) (en banc).

The SupremeCourt’sviewthat apost-termination opportunity to try to change an employer’s mind will be less meaningful is supported by common sense. It will be harder to convince an employer to reverse a decision to fire someone than to

make sure the initial decision is fair and thoughtful. Whether

that reluctance to change one’s mind is based on concerns

about appearing indecisive or admitting a mistake, or on

logistical reasons or other factors, the reluctance is real.

The Court’s observation is also consistent with what has

been shown by decades of behavioral research: once an

individual or group has made a decision to take a particular

course of action, it becomes harder and harder to change

course, even in the face of powerful conflicting evidence and

reasons. See generally, e.g., Daniel Kahneman, Thinking Fast

and Slow 80–85, 245–54 (2011) (describing confirmation bias,

biased assimilation, andsunk-cost effects on decision-making);

Geir Kirkebøen, Erik Vasaasen & Karl Halvor Teigen, Revisions

and Regret: The Cost of Changing Your Mind, 26 J. Behavioral

Decision Making 1, 1 (Jan. 2013) (summarizing large body of

researchthat demonstrates “people’s reluctance to change their

minds”); Craig A. Anderson, Belief Perseverance, in Encyclopedia of Social Psychology 109, 109–10 (Roy F. Baumeister &

Kathleen D. Vohs eds. 2007), and many sources cited in these
No. 13-2302 11

works. That’s why a meaningful opportunity to be heard

before termination is so important.

Carmody makes two arguments that the university did not

comply with the minimal requirements of Loudermill before

firing him. He first argues that at the July 28 meeting, he did

not have a meaningful opportunity to respond to the charges

he was aware of because the state court order in the Goldberg

case forbade him from discussing the contents of the emails in

Group Exhibit A. Second, he argues that the university added

the charge that he failed to report a security breach after the

July 28 meeting and did not give him an opportunity to

respond to this new charge before he was fired, even though he

requested such an opportunity.

Both of these are at least plausible theories sufficient to

survive the defendants’ motion to dismiss. We consider first

the effect of the state court order. Attorney Kirchner’s letter

summarizing the July 28 meeting, which is part of the complaint’s allegations, says that Carmody faced questions about

the “substance contained in” the emails in Group Exhibit A.

The state court judge’s order prohibited any secondary

dissemination of the contents of those emails beyond the

litigation files of the attorneys directly involved in the state

court action. We must treat as at least plausible the possibility

that Carmody would have violated the state court order if he

had answered at least some of the university officials’ questions.

If indeed Carmody would have needed to violate the state

court order to give his side of the story, he has plausibly

alleged that he had no meaningful opportunity before the
12 No. 13-2302

termination decision to respond to the most serious charge

against him.

Courts have recognized that a public employer may be

required to accommodate certain temporary obstacles, such as

a serious illness, that prevent an employee from responding to

pending charges. See Calderón-Garnier v. Rodríguez, 578 F.3d 33,

38 (1st Cir. 2009) (“We do not doubt that at some point a health

condition could prevent an individual from meaningfully

presenting her side of the story.”); Buckner v. City of Highland

Park, 901 F.2d 491, 495 (6th Cir. 1990) (“Buckner was not

suffering from any mental or physical disability which prevented him from offering his response to the complaint.”);

Galloway v. Louisiana, 817 F.2d 1154, 1158 (5th Cir. 1987)

(plaintiff who claimed he could not respond to employer’s

charges pre-termination because he was hospitalized might

have been correct, except that he abandoned an opportunity to

respond after his release).

That recognition is sound. The general constitutional

standard is that an employee with a property interest is

entitled to notice of the employer’s reasons and a meaningful

opportunity to respond before the employer decides to

terminate the employment. Domiano v. Village of River Grove,

904 F.2d 1142, 1148–49 (7th Cir. 1990) (reversing grant of

summary judgment to employer because brief pre-termination

telephone call did not constitute a meaningful opportunity to

respond to charges); see generally Loudermill, 470 U.S. at 543;

Mathews, 424 U.S. at 333. An employee who is silenced temporarily by an illness or injury has no meaningful opportunity to

respond. Carmody has alleged here that he was silenced

temporarily not by an illness or injury but by a court order,
No. 13-2302 13

enforceable with contempt sanctions and other penalties,

intended to protect the privacy interests of non-parties.1

Adding further support to Carmody’s theory are the

indications that his lawyer was working with the university’s

lawyer to modify the state court order so that Carmody could

respond freely to the university’s allegations. The order was

not a permanent or long-term prohibition. It was a temporary

obstacle that could be modified, especially with the university’s cooperation. Also, the timetable seems both unusual and

relevant. The university fired Carmody the same day the state

court met with counsel for Carmody and the university and

modified its order to allow him to respond to the accusations.

There is no indication here of any special urgency that required

the university to fire Carmody (remember that he had been

suspended with pay) before he could provide a meaningful

response to the accusations.

We cannot decide at this point, of course, whether

Carmody can present sufficient evidence to survive a motion

for summary judgment and to prevail at trial. Perhaps his

answering the university’s questions would not have required

him to violate the state court order. Perhaps he was not

reasonably diligent in attempting to remove the obstacle that

Carmody’s case is substantially different from cases involving employees

1

who decline to respond to an employer’s charges because their responses

could be incriminating. Such employees, rather than being silenced by a

temporary court order, make a voluntary and self-interested choice to stay

silent. Cases holding that such employees have been given a sufficient

opportunity to respond, see, e.g., Gniotek v. City of Philadelphia, 808 F.2d 241,

245 (3d Cir. 1986), do not apply here. 
14 No. 13-2302

the order presented. Perhaps even a brief further delay would

have imposed an undue burden on the university. Such

questions cannot be resolved on a motion to dismiss on the

basis of the complaint and the attached exhibits. See Chaney v.

Suburban Bus Div. of Regional Transp. Auth., 52 F.3d 623, 630 (7th

Cir. 1995) (reversing grant of motion to dismiss claim of

inadequate pre-termination hearing).

Turning to Carmody’s second theory on the pre-termination process, the later-added charge for failure to report a

security breach, we also agree with Carmody at the pleadings

stage that this charge may have been sufficiently distinct from

the original charges that he did not receive fair notice before

the July 28 meeting that he faced this charge. Relying on a new

charge without providing a meaningful opportunity to

respond violates due process. See Staples v. City of Milwaukee,

142 F.3d 383, 384, 387 (7th Cir. 1998) (reversing grant of

summary judgment for employer because employee was

informed of one grievance before a pre-termination meeting

but not another and arguably had no meaningful opportunity

to respond to new charge); Peery v. Brakke, 826 F.2d 740, 743–44

(8th Cir. 1987) (reversing judgment notwithstanding the

verdict for employer because employee had notice of only

some charges against him and was not “given any opportunity

to respond to the new charges before being fired”); see also

Stone v. FDIC, 179 F.3d 1368, 1376 (Fed. Cir. 1999) (“Procedural

due process guarantees are not met if the employee has notice

only of certain charges or portions of the evidence and the

deciding official considers new and material information.”).

The university, relying on Head v. Chicago School Reform Bd.

of Trustees, 225 F.3d 794 (7th Cir. 2000), contends that Carmody
No. 13-2302 15

should have realized a charge of failure to report a security

breach was at least implicit in its July 19 letter. In Head we

affirmed the district court’s grant of summary judgment to the

employer. We concluded that the rather broadly worded

charges leveled against the employee before his pre-termination hearing constituted sufficient notice, particularly because

the employee was given an additional opportunity to respond

to the charges after the hearing but before he was fired. Id. at

799 n.3, 804. This case is different because we face a similar

issue on the pleadings rather than summary judgment. We

cannot resolve the factual issues on the pleadings, and in any

event there is no indication that Carmody received a second

pre-termination opportunity to respond to the arguably new

charge, as the plaintiff did in Head.

The university’s response regarding Carmody’s pretermination claim is focused primarily on pointing out,

correctly, that Carmody’s reliance on Baird v. Board of Educ. for

Warren Cmty. Unit Sch. Dist. No. 205, 389 F.3d 685 (7th Cir.

2004)—a case holding that a breach of contract suit cannot

substitute for a post-termination hearing—is misplaced.

Regarding the adequacy of Carmody’s pre-termination

hearing, the university merely states that Carmody could have

responded to the charges at the July meeting despite the court

order because “[i]t was the use of the e-mails that was being

investigated, not the information contained therein.” In

addition, the university remarks that the “district court

correctly ruled that the statement of charges provided to

Carmody was certainly sufficient to allow him to defend

himself.” These conclusory assertions merely contradict

Carmody’s factual allegations. They are not sufficient to allow
16 No. 13-2302

us to affirm dismissal on the pleadings. Carmody should have

been allowed to proceed on the theory that he was denied an

adequate pre-termination hearing.

II. Sufficiency of the Post-Termination Hearing

A. Factual Allegations

After Carmody was fired, he notified the university that he

would appeal. He received a document summarizing the

hearing procedures, and his attorney Kirchner responded with

a letter objecting to a number of perceived deficiencies. The

objections relevant to this appeal were that the procedures did

not provide for access to examine the university’s email

system, or for a court reporter or other means of recording the

hearing, or for subpoenas to witnesses. The university refused

Carmody’s requests to alter these aspects of the hearing

procedures.

The hearing officer’s report, attached as an exhibit to

Carmody’s complaint, shows that Carmody’s lawyer was

permitted to cross-examine the university’s witnesses extensively. The university rested its case in mid-December 2010,

and the hearing was to resume at the end of January 2011 for

Carmody to present his evidence.

Scheduling conflictsbetweenattorney Kirchner andcounsel

for the university delayed resumption, which was rescheduled

for May 2011. On April 17, however, Kirchner died. Carmody

was left unrepresented. Carmody then asked to see the hearing

officer’s notes, which he felt would help him find a new

attorney. The hearing officer denied that request, but he

granted Carmody’s request for a few months to replace
No. 13-2302 17

Kirchner. Although the university sought a specific deadline,

the hearing officer explained that he would not “set firm time

limits on Mr. Carmody’s efforts to secure new representation.”

At the end of June 2011, Carmody sent the hearing officer

an email declining to participate in further proceedings. He

said the hearing officer should conclude the post-termination

hearing with the university’s counsel. The hearing was not

resumed, and instead the university submitted a written

summary of its position. 

The hearing officer issued his findings in July 2011. He

concluded that the university had not shown that Carmody

himself breached the computer system to obtain the emails in

Group Exhibit A. (The university’s evidence showed that the

emails were all accessed from Deborah Thurston’s computer,

and no direct evidence showed that Carmody was the person

who accessed them.) But the hearing officer found that the

other two charges—Carmody used the emails for non-university purposes without permission and failed to report a

security breach—were supported “clearly and convincingly.”

Based on his findings, the officer recommended that university

officials consider whether Carmody would have been fired on

those grounds alone, without assuming that Carmody himself

had breached the system’s privacy. The university informed

Carmody the following month that the two “clearly supported” charges were “sufficiently egregious to warrant

immediate dismissal.” Following the rejection of his posttermination appeal, Carmody filed this federal lawsuit. 

In his complaint, Carmody alleges that one or more of the

issues attorney Kirchner identified when he objected to the
18 No. 13-2302

hearing procedures constituted a denial of due process. He

focuses on his inability to record the hearing, to inspect the

university’s email system, and to subpoena witnesses. He also

points to the hearing officer’s refusal to supply him with the

officer’s notes and the officer’s refusal to exclude witnesses

from the hearing while other witnesses were testifying.

The district court explained that, under Mathews v. Eldridge,

424 U.S. 319, 334–35 (1976), Carmody’s right to his employment and the probable value of his desired procedures must be

balancedagainst the cost of the procedures and the university’s

interest in terminating problem employees. The court concluded in short that Carmody’s ability to defend himself was

not unduly hindered by the hearing’s purported deficiencies,

meaning that he had not stated a claim based on a denial of

due process. Carmody, 2013 WL 2145878 at *10–11.

B. Analysis

The requirements of due process are “flexible” and depend

on the situation at hand, Mathews, 424 U.S. at 334, but at the

same time the rules that apply to a given type of situation “are

shaped by the risk of error inherent in the truthfinding process

as applied to the generality of cases,” id. at 344. The rules are

not shaped by “rare exceptions.” Id.

On appeal Carmody again lists additional procedures he

believes should have been provided, but he develops no

argument that the potential value of these procedures in postterminationhearings, when weighed against their cost, renders

them constitutionally required. He cites a few cases involving

post-termination hearings in which a more extensive record

was produced, e.g., Willer v. Las Vegas Valley Water Dist., No.
No. 13-2302 19

98-15686, 1999 WL 274472, at *2 (9th Cir. Apr. 19, 1999) (posttermination hearing record was over 3700 pages long);

English v. Talladega Cnty. Board of Educ., 938 F. Supp. 775, 777

n.2 (N.D. Ala. 1996) (transcript was produced), or unspecified

discovery was conducted, e.g., Powers v. Richards, 549 F.3d 505,

509 (7th Cir. 2008) (fired employee “had the opportunity to

conduct discovery”). Carmody cites no case, however, holding

that any of his desired procedures were constitutionally

required, and we have found none. The ability to subpoena

witnesses, for example, is not always guaranteed in an administrative hearing. See Amundsen v. Chicago Park Dist., 218 F.3d

712, 717 (7th Cir. 2000).

In any event, the specific procedures Carmody requested

do not require individual analysis. Carmody’s decision to bow

out of the post-termination hearing—a decision he made

freely—forecloses his due process claim to the extent it is

premised on that hearing. See Swank v. Smart, 999 F.2d 263,

264–65 (7th Cir. 1993) (employee waived right to post-termination hearing by declining it); Farhat v. Jopke, 370 F.3d 580, 596

(6th Cir. 2004) (“[W]here the employee refuses to participate or

chooses not to participate in the post-termination proceedings,

then the employee has waived his procedural due process

claim.”).

We are not suggesting that no circumstances could ever

justify forgoing apost-termination hearing. (We allowed above

forjust suchapossibility regarding Carmody’s pre-termination

hearing: a court order prohibiting meaningful participation.)

But the complaint and exhibits show that the university offered

Carmody an adversarial post-termination hearing before a

neutral hearing officer. He was permitted to have legal counsel
20 No. 13-2302

and to present evidence and cross-examine witnesses.

Carmody participatedthroughthe close of the university’s case

but declined to complete the hearing. His explanation on

appeal for bowing out—that he did not want “to participate in

his own lynching”—is hyperbole that is completely out of step

with his exhibits and allegations. The district court correctly

rejected Carmody’s due process claim to the extent it was

premised on the post-termination hearing. 

Carmody also appeals the district court’s denial of his

motion to amend his complaint, but he has given us no

indication what allegations he would like to add. In general, a

district court should freely give leave to amend to cure curable

defects, at least where there is no undue delay or undue

prejudice to the opposing party, but the court can reasonably

expect a party asking for an opportunity to amend to identify

how he proposes to cure the defects. E.g., Independent Trust

Corp. v. Stewart Information Services Corp., 665 F.3d 930, 943–44

(7th Cir. 2012). We see no reason to disturb the district court’s

decision on this point.

III. Illinois State Officials and Employees Ethics Act Claim 

Carmody also claims that his firing violated the provision

of the Illinois State Officials and Employees Ethics Act that

prohibits retaliation against employees who report illegal

activity. See 5 Ill. Comp. Stat. 430/15-10. This claim is based on

Carmody’s belief that his firing actually had nothing to do with

the emails he found in his newspaper box. He was fired in

2010, he contends, in retaliation for a report he made three

years earlier, in May 2007, about improper activity at the

university. According to his complaint, he had learned that two
No. 13-2302 21

professors were using a popcorn machine on university

property as part of “a private consulting deal” of some sort. He

reported this so-called“popcornactivity” toProfessor Deborah

Thurston (of the later Goldberg case), but she took no action,

in Carmody’s view because her husband was one of the

perpetrators. Carmody’s only reason for believing that his

report about the popcorn led to his firing seems to be that the

popcorn incident occurred and then later he was fired.

If the allegations in a complaint do not “‘state a claim to

relief that is plausible on its face,’” the claim cannot survive a

motion to dismiss. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009),

quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).

The district court concluded that Carmody did not state a

plausible claim under the Ethics Act because the three years

separating the popcorn incident and his firing made his claim

implausible. Carmody, 2013 WL 2145878, at *12–13. We agree

with that assessment, at least where Carmody has given us no

potential explanation for the long delay between his report and

the alleged retaliation. Under these circumstances, three years

is “well beyond the time that would allow a reasonable jury to

conclude that his termination was causally related” to the

report. See Lalvani v. Cook Cnty., Illinois, 269 F.3d 785, 790 (7th

Cir. 2001) (concluding that a year and a half between employee’s action and supposed retaliation made claim implausible). Again Carmody seeks leave to amend his complaint, but

nothing in his appellate filings identifies new allegations or

suggests that an amendment would make his claim plausible. 

For these reasons, we REVERSE the district court’s judgment dismissing Carmody’s due process claim and REMAND

the case for further proceedings limited to whether he was
22 No. 13-2302

denied a constitutionally adequate pre-termination hearing.

We AFFIRM the dismissal of Carmody’s claim under 5 Ill.

Comp. Stat. 430/15-10.