In the

United States Court of Appeals

For the Seventh Circuit

Nos. 10-2114, 10-2243, 10-2814 & 10-2921

JOHN MARCATANTE, et al.,

Plaintiffs-Appellees,

v.

CITY OF CHICAGO, ILLINOIS,

a municipal corporation,

Defendant-Appellant.

Appeals from the United States District Court 

for the Northern District of Illinois, Eastern Division.

No. 06 C 0328—Charles P. Kocoras, Judge.

ARGUED MAY 2, 2011—DECIDED AUGUST 24, 2011

Before POSNER, KANNE, and TINDER, Circuit Judges.

TINDER, Circuit Judge. The plaintiffs are retired City

of Chicago employees who were members of several

trade unions. They were offered incentives to retire early

under an Early Retirement Incentive Program (ERIP)

and did so in early 2004 while their unions were still

negotiating new Collective Bargaining Agreements

(CBAs) for the 2003-2007 period. During the negotiation
2 Nos. 10-2114, 10-2243, 10-2814 & 10-2921

process, the 1999-2003 CBAs governed the parties’ relationships. In 2005, after two years of negotiations, the City

and unions agreed to make raises retroactive to July 2003,

but only for current employees, employees laid off with

recall rights, and seasonal employees eligible for rehire,

not for the plaintiff retirees. The plaintiffs brought this

class action claiming entitlement to retroactive wage

increases between July 2003 and their retirement dates.

The certified class consists of coalition union members

who retired under the ERIP between July 2003 and

July 2005.

The parties filed cross-motions for summary judgment. The district court granted the City’s motion on the

plaintiffs’ federal claims (due process and equal protection)

and state law breach of express contract claim. The court,

however, granted summary judgment to the plaintiffs

on their state law implied contract claim and awarded

the class $1,773,502 in retroactive pay, plus attorney’s

fees. The City appeals the district court’s grant of summary judgment on the plaintiffs’ implied contract claim

and the plaintiffs cross-appeal on their due process and

breach of express contract claims; the plaintiffs do not

challenge the adverse judgment on their equal protection claim. The district court’s original jurisdiction

derives from the federal claims, see 28 U.S.C. § 1331, and

the accompanying state law claims fall within the court’s

supplemental jurisdiction, see 28 U.S.C. § 1367(a).

We reverse the district court’s entry of summary judgment in favor of the plaintiffs on their implied contract

claim and otherwise affirm. Because express contracts—
Nos. 10-2114, 10-2243, 10-2814, & 10-2921 3

the 1999-2003 CBAs—governed the plaintiffs’ wages,

their implied contract claim cannot succeed. Before the

plaintiffs accepted the ERIP benefits, there was uncertainty as to whether they would receive retroactive

wages under the 2003-2007 CBAs. The ERIP provided

enhanced pension benefits, but conspicuously missing

from it was any suggestion of entitlement to retroactive

wage increases. No doubt the plaintiffs hoped for wage

increases, but they had no right to them. A June 2003

letter agreement between the City and the unions didn’t

confer such a right; it merely extended the 1999-2003

CBAs (and existing wages) during contract negotiations and made agreed-upon wage increases, if any,

retroactive. The City and the union negotiated and

didn’t agree to give the plaintiffs wage increases; this

was entirely consistent with the 2003 letter agreement.

Accordingly, the plaintiffs’ claims for breach of implied

and express contract fail as a matter of law. The plaintiffs’

due process claim similarly fails because there is no

evidence that the City made misrepresentations to

induce them to retire early.

I. Facts

The plaintiffs, as City of Chicago employees, were

members of trade unions that joined together as a

coalition during collective bargaining with the City. The

plaintiffs were covered under the 1999-2003 CBAs as

“prevailing wage rate” employees—those employees

working at jobs classified as prevailing wage jobs. “Prevailing wage rate” is a term that the City and the unions

use to refer to the hourly rate paid to crafts or job classi-
4 Nos. 10-2114, 10-2243, 10-2814 & 10-2921

fications doing similar kinds of work in Cook County

pursuant to the formula used by the United States Department of Labor (DOL) in administering the DavisBacon Act. Certain other employees received a negotiated wage rate.

Before the plaintiffs’ 1999-2003 CBAs were set to expire

on June 30, 2003, the coalition’s representative provided

notice that the unions would not renew the existing

agreement. The unions and the City began negotiating

successor agreements for 2003-2007. Because the parties

were unable to reach an agreement by the 1999-2003

CBA expiration date, they agreed to extend the current

CBAs while negotiations continued. The City and the

unions entered into the following letter agreement on

June 26, 2003:

This will confirm our conversations regarding

the extension of the Coalition Unions’ contracts

which are due to expire at midnight June 30, 2003.

It is understood and the parties agree to extend

the terms of all current agreements through midnight July 30, 2003. Thereafter, the agreements

shall continue on a day-to-day basis subject to

termination by either party upon ten (10) days

written notice.

During the extension period the terms of such

agreements shall continue without change.

In consideration of the extension of the current

agreements, the City agrees that wage increases,

if any, agreed to by the parties shall be retroactive to July 1, 2003, unless the parties mutually

agree to another date. 
Nos. 10-2114, 10-2243, 10-2814, & 10-2921 5

(A28-29) (emphasis added). The City handwrote “if any”

into the agreement; the City and unions signed this

modified agreement.

The City and the unions had begun discussions for

new CBAs in the spring of 2003. The unions wanted

wage increases, but because the City was facing a serious

budget deficit, it wasn’t prepared to commit to wage

increases without certain work rule concessions. The

City initially offered two proposals that included raises

for “prevailing wage rate employees”: (1) defer raises

for six months until January 2004 at which point the

prevailing wage rate would be increased on a yearly

basis; and (2) provide rate increases as of July 2003 on a

one-time, one-year basis (but no raise guarantee after

July 1, 2004). Both proposals included a number of

work rule changes designed to offset the cost of the

raises, such as unpaid furlough days, changes in work

hours, and reductions in reporting and call-in pay. The

unions rejected these proposals.

In late 2003, while negotiations for the 2003-2007 CBAs

were still ongoing, the City offered employees an

incentive package to retire early under the ERIP. The

incentives included the ability to purchase up to five

years of credited services for one-half the usual cost

to increase the employee’s annuity (each year of service

purchased would allow the retirees’ age to be deemed

one year older than it actually was) and the ability to

receive an annuity that was not discounted for retirement before age sixty. After attending seminars to

learn about the ERIP, each named plaintiff took ad-
6 Nos. 10-2114, 10-2243, 10-2814 & 10-2921

vantage of the program and retired in either February or

March 2004.

At the time of the plaintiffs’ retirements, negotiations

between their unions and the City were still ongoing.

During negotiations, the unions and the City discussed

whether any pay raises would be given, who would

receive them, and whether they would be applied retroactively. Among other proposals, the City proposed

retroactive pay increases effective various dates. The

unions and the City specifically discussed whether

former employees, including plaintiff retirees, should be

given retroactive pay raises. The unions pushed for

employees who retired after June 2003 to get the increase. In July 2005, the City offered to give retroactive

raises to those retirees in exchange for active employees

taking two unpaid furlough days, but the unions

rejected this proposal.

The parties finally reached a tentative agreement in

July 2005. In the 2003-2007 CBAs, the unions agreed to

various work rule concessions and the City agreed to

the hourly “prevailing wage rate” of pay, as established

by the DOL for similar job classifications in Cook

County, effective July 1, 2003, for employees who had

received that rate under prior agreements. The raise,

however, was retroactive only for employees who were

either on the payroll, were on layoff with recall rights,

or were seasonal employees eligible for rehire as of

July 18, 2005. Shortly thereafter, the parties also agreed

to a wage increase for non-prevailing rate employees. The

City Council ratified the successor CBAs in October 2005.
Nos. 10-2114, 10-2243, 10-2814, & 10-2921 7

The City’s chief labor negotiator, Michael Duffee, testified that with every CBA “[t]he City does something

different . . . as to who gets—if there is retroactivity,

who gets it and how much.” The named plaintiffs

attested that when they retired, they understood that

their rate of pay was still being negotiated. They believed they would eventually receive the “prevailing

wage rate” for the work they performed after June 30,

2003, because they had received retroactive wage increases under prior contracts and have historically

received the same “prevailing wage rate” as persons in

their unions who worked in identical job classifications.

Also, employees who retired during contract negotiations for the 1999-2003 CBAs received retroactive pay

increases for work they performed after July 1999.

II. Discussion 

Before diving into the merits, we first address the

propriety of plaintiffs’ cross-appeal. In their initial brief,

the plaintiffs didn’t indicate they were seeking to

expand or modify the judgment in their favor. They

requested that “the Court affirm the district court’s

decision in this matter in its entirety. Alternatively, if, and

only if, the Court reverses the district court’s decision

that Plaintiffs are entitled to summary judgment on

[their implied contract claim], Plaintiffs request that the

Court reverse the district court’s decision granting summary judgment to the City, and denying summary judgment to Plaintiffs, on [their breach of contract and due

process claims], and that the Court remand this matter

for further proceedings.”
8 Nos. 10-2114, 10-2243, 10-2814 & 10-2921

It is improper to file a cross-appeal to merely assert an

alternative ground of affirmance. See Stone Container Corp.

v. Hartford Steam Boiler Inspection & Ins. Co., 165 F.3d 1157

(7th Cir. 1999). “A cross-appeal is necessary and proper

only when the appellee wants the appellate court to

alter the judgment (the bottom line, not the grounds or

reasoning) of the district court.” Id.; see also Jones Motor

Co. v. Holtkamp, Liese, Beckemeier & Childress, P.C., 197

F.3d 1190, 1191 (7th Cir. 1999) (“The cross-appeal (which

is contingent because the ruling is of no consequence if

we affirm the judgment for the defendants) is improper,

because it does not seek an alteration of the judgment.”).

When plaintiffs are arguing alternative grounds for

affirmance they can do so in their response brief without

cross appealing. See Am. Land Holdings of Ind., LLC v.

Jobe, 604 F.3d 451, 453 (7th Cir. 2010); see also Singletary

v. Cont’l Ill. Nat’l Bank & Trust Co. of Chi., 9 F.3d 1236,

1240 (7th Cir. 1993).

The plaintiffs concede they are not seeking any additional relief on their breach of contract claim, so their

cross-appeal on that count is improper. In their reply

brief on cross-appeal and at oral argument, they argue

that they are seeking a modified judgment as to their

due process claim. If successful on their due process

argument, the plaintiffs contend they would be entitled

to prejudgment interest and statutory attorney’s fees

under 42 U.S.C. § 1988 (as opposed to the attorney’s

fees awarded on their state law claim under the common

fund doctrine). The City also concedes that if the plaintiffs succeed on due process grounds, the case must be

remanded so the district court can determine an appro-
Nos. 10-2114, 10-2243, 10-2814, & 10-2921 9

priate measure of damages. Accordingly, the due process claim would have provided a proper basis to crossappeal, but the plaintiffs never indicated they were

seeking any type of modified relief or alteration in the

judgment until their reply brief. Issues raised for the

first time in a reply are waived. See In re Sokolik, 635

F.3d 261, 268 (7th Cir. 2011). The plaintiffs ask for the

district court’s opinion to be affirmed in its entirety.

They seek an alternative ground for relief, but they didn’t

follow that up with a request for a modified judgment.

Because they didn’t seek additional relief, their crossappeal is improper and must be stricken. Even considering the plaintiffs’ breach of contract and due

process claims as alternative grounds for affirmance, see

Jones Motor Co., 197 F.3d at 1191-92 (dismissing improper

cross-appeal but considering the alternative ground

for affirmance), we find that the district court properly

dismissed these claims.

Now on to the merits. We review a district court’s

grant of summary judgment de novo, construing all

facts and reasonable inferences in the light most

favorable to the non-moving party. Spivey v. Adaptive

Mktg. LLC, 622 F.3d 816, 822 (7th Cir. 2010). Summary

judgment is appropriate if “the movant shows that there

is no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law.” Fed.

R. Civ. P. 56(a). Cross-motions for summary judgment

do not waive the right to a trial; rather, we treat the

motions separately in determining whether judgment

should be entered in accordance with Rule 56. McKinney

v. Cadleway Props., Inc., 548 F.3d 496, 504 n.4 (7th Cir.
10 Nos. 10-2114, 10-2243, 10-2814 & 10-2921

2008). Finding no genuine issues of material fact, we

conclude that the district court erred in granting summary judgment to the plaintiffs on their implied contract theory and hold that summary judgment should

have been entered in favor of the City. We otherwise

affirm the district court’s grant of summary judgment

in favor of the City on the plaintiffs’ breach of express

contract and due process claims.

A. State Law Claims

The plaintiffs’ primary argument on appeal is that they

continued to work for the City after the 1999-2003

CBAs expired with the mutual understanding and expectation that the City would later reach a final agreement regarding their wage rate. They claim an implied

contract formed because “the City had entered into an

agreement with Plaintiffs under which the City accepted

Plaintiffs’ work but left the final rate of pay unstated

pending agreement at a later date.” Because no final

agreement was ever reached for their wages, they assert

that the court must imply a contract term for a reasonable rate of pay. The plaintiffs claim that the

following facts gave rise to an implied contract for raise

increases: employees who continued working for the

City in the same job classifications received retroactive wage increases for the time period at issue; the

plaintiffs’ wages were generally tied to “prevailing wage

rates”; the City offered wage increases shortly before

and after the 1999-2003 CBAs were set to expire; the City

agreed to make any wage increases retroactive in the
Nos. 10-2114, 10-2243, 10-2814, & 10-2921 11

The plaintiffs also assert that the City waived its argument

1

that “the implied contract is not legally binding on the City

pursuant to 65 ILCS 5/8-1-7(a)” (prior appropriations statute).

Because we find that there was no implied contract, we need

not address the prior appropriations statute.

June 26, 2003 letter agreement; and the plaintiffs, and

past retirees who had retired during contract negotiations, had historically received retroactive pay increases. The district court found the plaintiffs’ argument persuasive, concluding that the City breached an

implied contract under Illinois law and reasoning that

the City’s acceptance of plaintiffs’ services entitled them

to reasonable pay from July 2003 through the date of

their retirement. Reasonable pay, the court found, was

the rate the City was willing to pay retroactively to

other employees. For the reasons set forth below, we

conclude that the district court’s finding of an implied

contract was in error.

The plaintiffs initially contend that the City waived

its arguments that (1) “[p]laintiffs’ employment could not

be altered by an implied contract because it was covered

by an express contract,” and (2) “there was no implied

contract giving plaintiffs retroactive wage increases,”

because the City did not sufficiently develop these arguments before the district court with proper citations to

relevant legal authority. We disagree. The City raised 1

both in its memorandum in support of summary judgment, see Doc. 66, and raised similar arguments in

response to the plaintiffs’ motion for summary judgment, see Doc. 97. The burden on the moving party is
12 Nos. 10-2114, 10-2243, 10-2814 & 10-2921

discharged by “showing”—that is, pointing out to the

district court—that there is an absence of evidence to

support the nonmoving party’s case. See Crawford v.

Countrywide Home Loans, Inc., ___ F.3d ___, No. 10-3135,

2011 WL 2906157, at *5 (7th Cir. July 21, 2011) (citing

Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). Once the

City challenged the factual support and legal soundness

of plaintiffs’ claim, the plaintiffs acquired the burden of

demonstrating that genuine issues remained for trial.

See Boumehdi v. Plastag Holdings, LLC, 489 F.3d 781, 787

(7th Cir. 2007) (“To survive summary judgment, [the

plaintiffs] must make a sufficient showing of evidence

for each element of [their] case that [they] bear[ ] the

burden of proving at trial.”). They didn’t meet that burden.

Pursuant to Illinois law (the parties agree that the state

law claims are controlled by Illinois law), an implied

contract is created by law as a result of the parties’ conduct. Zadrozny v. City Colls. of Chi., 581 N.E.2d 44, 47 (Ill.

App. Ct. 1991). It can either be implied in fact or in law.

Id. The plaintiffs appear to rest their claim on an impliedin-fact contract, but for completeness, we address both.

“A contract implied in fact is one in which a contractual

duty is imposed by a promissory expression which may

be inferred from the facts and circumstances and the

expressions [on] the part of the promisor which show an

intention to be bound.” Estate of Jesmer v. Rohlev, 609

N.E.2d 816, 820 (Ill. App. Ct. 1993). Such a contract “consists of obligations arising from an agreement where

an agreement has not been expressed in words.” In re

Marriage of Bennett, 587 N.E.2d 577, 580 (Ill. App. Ct. 1992).

It is “a true contract, containing all necessary elements
Nos. 10-2114, 10-2243, 10-2814, & 10-2921 13

of a binding agreement; it differs from other contracts

only in that it has not been committed to writing or

stated orally in express terms, but rather is inferred from

the conduct of the parties in the milieu in which they

dealt.” A.E.I. Music Network, Inc. v. Bus. Computers, Inc., 290

F.3d 952, 956 (7th Cir. 2002) (quotations omitted) (Illinois

law); Al’s Serv. Ctr. v. BP Prods. N. Am., Inc., 599 F.3d 720,

726 (7th Cir. 2010) (“That is the significance of ‘in fact’:

the circumstances allow an inference that the parties had

a deal (a ‘meeting of the minds’) even though there

was no statement to that effect.”) (Illinois law).

“[A]n implied contract cannot coexist with an express

contract on the same subject.” Maness v. Santa Fe

Park Enters., Inc., 700 N.E.2d 194, 201 (Ill. App. Ct. 1998)

(holding that express contract negated the existence

of any implied-in-fact contract and rejecting contention

that alleged implied-in-fact contract supplemented express written contracts). “[P]romises should not be

found by process of implication if they would be inconsistent with express provisions that there is no reason to

set aside or to hold inoperative.” Barry Mogul & Assocs.,

Inc. v. Terrestris Dev. Co., 643 N.E.2d 245, 253 (Ill. App. Ct.

1994) (quoting Corbin on Contracts § 564 at 297 (1960)).

The express contract, however, must govern the same

subject matter as that at issue. Id.; see also Gadsby v. Health

Ins. Admin., Inc., 522 N.E.2d 865, 871 (Ill. App. Ct. 1988).

The plaintiffs cite Ekl v. Knecht, 585 N.E.2d 156 (Ill. App.

Ct. 1991) in support of their claim that the court must

impose an implied contract term because there was

no agreement that governed their rate of pay after
14 Nos. 10-2114, 10-2243, 10-2814 & 10-2921

July 2003. In Ekl, the plaintiffs called a plumber to

perform work and were invoiced for that work at

what plaintiffs believed was a ridiculous amount. 585

N.E.2d at 160. The court found that there was an impliedin-fact contract to pay for the plumber’s services, but

regardless of what the plaintiffs anticipated paying, there

was no evidence of an express or implied promise to

pay defendants’ regular charges at the time the contract

was formed. Id. at 162. The court therefore held that

the implied-in-fact contract obliged the plaintiffs to pay

a reasonable price for the services rendered, not the

amount charged by the plumber. Id.

Unlike the oral contract in Ekl, which did not specify

payment terms, the issue of the plaintiffs’ pay in this

case was the subject of an express agreement. During

negotiations, the plaintiffs’ pay was governed by the 1999-

2003 CBAs that were allowed to continue in effect

through the date of their retirement. That agreement

was then replaced with the 2003-2007 CBAs, which unfortunately for the plaintiffs, didn’t give them raises. Because there was an express agreement that addressed rate

of pay for retirees, there can be no implied contract.

For similar reasons the plaintiffs’ reliance on Martin

v. Campanaro, 156 F.2d 127 (2d Cir. 1946) is misplaced.

First, it’s not precedential authority; it was not decided

under Illinois law. Second, it’s readily distinguishable. In

Martin, when the employees’ collective bargaining agreement expired, they continued to work for the rate of pay

set forth in the expired CBA while the employer and

union negotiated new wage terms. 156 F.2d at 128. When
Nos. 10-2114, 10-2243, 10-2814, & 10-2921 15

those negotiations reached a stalemate, the dispute was

referred to the National War Labor Board, but shortly

thereafter, the employer was adjudicated bankrupt. Id.

The Board issued a “directive order” for retroactive pay

increases to the employees. On review, the court in

Martin held that the Board didn’t create rights that were

enforceable by the claimants, but nevertheless found a

contract implied-in-fact for the reasonable value of their

services after the expiration of the CBA. Id. at 129.

The court in Martin stated that “[w]hen an agreement

expires by its terms, if, without more, the parties continue to perform, . . . an implication arises that they have

mutually assented to a new contract containing the

same provisions as the old.” Id. But based on the particular facts of the case—the employer’s agreement to

negotiate new wage terms, the resulting unsuccessful

negotiations, the hearings before the Board, and the

wartime no-strike pledge given by organized labor—the

court found that no reasonable person could believe

that the employees agreed to work, in the interval, at

their old rates. Id. The court held: “We think that here

there was a contract ‘implied in fact’ to pay the reasonable value of the services unless a new contract

definitizing the wage-rates should be negotiated . . . .” Id.

at 130 (emphasis added).

Although the plaintiffs place heavy reliance on Martin,

it gets them nowhere. Here, there was “a new contract

definitizing [their] wage-rates” and that contract failed

to provide them with pay increases. Despite these facts,

the plaintiffs point to the City’s past performance and
16 Nos. 10-2114, 10-2243, 10-2814 & 10-2921

argue that it was unreasonable to believe that they

agreed to work under the old rates. They present evidence that they received retroactive wages increases

under prior contracts, they had historically received the

same “prevailing wage rate” as persons in their unions

who worked in identical job classifications, and under

the 1999-2003 CBAs, retired employees received retroactive pay increases. This past performance, however,

doesn’t create an implied contract because the terms of

the CBAs are up for re-negotiation at the end of each

contract term, providing the City and the unions with

the opportunity to negotiate new terms that vary from

past practices and agreements. The City’s addition of

the words “if any” in the 2003 letter agreement

illustrates this point. The plaintiffs participated in the

ERIP with the knowledge and understanding that retroactive wage increases were still being negotiated.

They may have hoped for retroactive raises, but such

a unilateral expectation is insufficient to create an

implied contract. See Zadrozny, 581 N.E.2d at 48 (“In order

to recover on an implied contract, the facts and circumstances must show that, at the time the services were

rendered, one party expected to receive payment and

the other party intended to make payment.”). The facts

in this case don’t lead to the conclusion reached in Martin.

We pause here to consider the plaintiffs’ express contract

claim because it dovetails into their argument that there
Nos. 10-2114, 10-2243, 10-2814, & 10-2921 17

The City raises an exhaustion defense to the plaintiffs’ breach 2

of contract claim. The City asserts that this claim should be

dismissed because the plaintiffs failed to exhaust the grievance

procedures set forth in the 1999-2003 CBAs. The plaintiffs

respond that as retirees they weren’t required to grieve their

complaint, citing Rossetto v. Pabst Brewing Co., 128 F.3d 538, 540

(7th Cir. 1997) (holding that retirees’ claims “for benefits . . .

belong to the retirees individually, and the retirees may deal

directly with [the employer] in pursuing such claims”). See

also Carnock v. City of Decatur, 625 N.E.2d 1165, 1169 (Ill. App.

Ct. 1993) (holding that because the plaintiff was retired,

he wasn’t required to exhaust grievance procedures before

bringing suit for unused accumulated sick leave). Because

we can swiftly dispose of the plaintiffs’ breach of express

contract claim on the merits, we do not need to address this

issue.

was a mutual understanding for retroactive wages. The 2

plaintiffs contend that the 2003 letter agreement required

the City, if it agreed to give raises, to apply them retroactively to all employees as of July 2003 and that by only

giving active or laid-off employees retroactive wage

increases, the City violated the agreement. The district

court properly rejected this argument.

The letter states in relevant part: “In consideration of

the extension of the current agreements, the City agrees

that wage increases, if any, agreed to by the parties [the

unions and the City] shall be retroactive to July 1, 2003,

unless the parties mutually agree to another date.” The

letter is unambiguous; it merely contemplated that the

City and the unions would continue to negotiate wage
18 Nos. 10-2114, 10-2243, 10-2814 & 10-2921

increases and made agreed-upon wage increases, if any,

retroactive to July 2003 (unless they agreed otherwise).

After extensive negotiations, the parties didn’t agree to

give plaintiff retirees retroactive wage increases; this

deal was entirely consistent with the terms of the 2003

letter agreement, which in essence, was an agreement

to negotiate. “Illinois permits parties to agree to negotiate,

and to work toward some goal, without committing

themselves to its achievement—or to pay damages if it

is not achieved.” Murray v. Abt Assocs., Inc., 18 F.3d

1376, 1378 (7th Cir. 1994). Further, the letter is too indefinite to create a contract for retroactive raises not set

forth in the more elaborate 2003-2007 CBAs. Id. (“Respect

for the parties’ autonomy in shaping their arrangements,

and for the allocation of risks they selected, mean[s] that

a court ought not find in a letter . . . the very promise

the more elaborate Proposed Term Sheet withheld.”).

The plaintiffs’ argument similarly falters under an

implied-in-law theory, sometimes referred to as a claim

in quantum meruit, quasi-contract, or one for unjust

enrichment. See, e.g., Yugoslav-Am. Cultural Ctr., Inc. v.

Parkway Bank & Trust Co., 763 N.E.2d 360, 367 (Ill. App. Ct.

2001). Unlike contracts implied in fact, contracts implied

in law arise notwithstanding the parties’ intentions,

Zadrozny, 581 N.E.2d at 48, and are no contracts at all,

Barry Mogul, 643 N.E.2d at 251. They are instead

governed by equitable principles. Klekamp v. City of

Burbank, 639 N.E.2d 241, 245 (Ill. App. Ct. 1994). Under

this theory, “a plaintiff asks the court to remedy the fact

that the defendant was ‘unjustly enriched’ by imposing

a contract.” Village of Bloomingdale v. CDG Enter. Inc., 752
Nos. 10-2114, 10-2243, 10-2814, & 10-2921 19

N.E.2d 1090, 1101 (Ill. 2001). To succeed, the plaintiffs

must show (1) that they performed a service to benefit

the defendant; (2) they performed the service non-gratuitously; (3) the defendant accepted their services; and

(4) no contract existed to prescribe payment for this

service. Bernstein & Grazian, P.C. v. Grazian & Volpe, P.C.,

931 N.E.2d 810, 825 (Ill. App. Ct. 2010). Similar to the

implied-in-fact theory of recovery, there can be no

contract implied in law where an express contract or a

contract implied in fact exists between the parties

and concerns the same subject matter. Zadrozny, 581

N.E.2d at 48.

Because there is an express contract that governed the

plaintiffs’ wages, there can be no implied-in-law contract,

nor would equity require finding an implied contract

here. In Klekamp, the court rejected the plaintiffs’ argument of an implied-in-law contract under similar facts.

The plaintiffs in that case were firefighters/paramedics

hired by the city. 639 N.E.2d at 242. They were compensated as firefighters during their first two years of probationary status, and then paid as paramedics pursuant

to the City’s then-existing policy. Id. at 243. The City

later changed its policy to pay firefighters/paramedics

a higher salary during the probationary period. Id. The

plaintiffs sought retroactive pay, arguing that there was

an implied contract for higher compensation during

their probationary period in accordance with the new

policy. Id. The court disagreed, stating that “[c]ases

which have addressed employees’ claims based on implied contract theories for extra compensation beyond a

pre-determined salary are sparse and have held against
20 Nos. 10-2114, 10-2243, 10-2814 & 10-2921

the employees.” Id. at 245 (citing cases). The plaintiffs

acknowledged that they were hired as firefighters and

would serve a two-year probationary period before

their job classification, and correspondingly their

salaries, would change. Id. at 246. Under these circumstances, the court couldn’t find that defendant was

unjustly enriched. Id.

Similar to Klekamp, at the time of their retirement, the

plaintiffs knew they were being paid at the 1999-2003

wage rates and that there was no certainty of retroactive

wage increases. Before accepting early retirement,

the plaintiffs could have discussed retroactive raises

with their union, and certainly should have if their decisions to accept early retirement were contingent upon

increased pay. After agreeing to participate in the ERIP,

it was too late. The plaintiffs were stuck with the wage

rates in the 1999-2003 CBAs, unless the union and the

City agreed to give them retroactive wage increases in

the 2003-2007 CBAs, which they did not. See Mueller v.

City of Highland Park, 519 N.E.2d 712, 716 (Ill. App. Ct.

1988) (a contract implied in law did not exist concerning

water supplied by a city to a village during the period of

negotiations between the two municipalities; “[i]f the

parties later enter[ ] into a valid contract, there cannot be

a recovery on an implied contract”). Nothing required

the City to give all employees the same pay increase;

the City and the union were free to negotiate as they

did. See 5 Ill. Comp. Stat. 315/7 (requiring the union and

the public employer to bargain in good faith but not

compelling either party to agree to proposals or make

concessions).
Nos. 10-2114, 10-2243, 10-2814, & 10-2921 21

The plaintiffs also make passing reference on appeal to a 3

procedural due process claim asserted in Count I of their

amended complaint. This argument is completely undeveloped

and so is waived. See Argyrpoulos v. City of Alton, 539 F.3d

724, 738 (7th Cir. 2008) (holding undeveloped claims are

waived).

The City has not been unjustly enriched by accepting

the plaintiffs’ services in exchange for existing wage

rates. The plaintiffs were paid for their services, received

enhanced pension benefits for taking early retirement,

and were not subject to the new cost-saving concessions

that apply to active employees who received retroactive

raises. They essentially asked the district court to

rewrite the 2003-2007 CBAs, which were the subject of

two years of negotiation and concessions on both sides,

to provide them with additional compensation. This

result would be inequitable. During contract negotiations, retroactive pay for employees who retired after

July 2003 was discussed and rejected in exchange for

more favorable work rules. The City is entitled to the

benefit of its bargain.

B. Due Process Claim 

In Count V of their amended complaint, the plaintiffs

allege that the City failed to give them important and

material information to induce them to take early retirements. They assert that the City concealed or withheld 3

its intention not to give them retroactive pay increases,

even though the City knew that plaintiffs participated in
22 Nos. 10-2114, 10-2243, 10-2814 & 10-2921

the ERIP with the expectation of receiving such increases

based on the City’s past practices. We assume without

deciding that the plaintiffs had a property interest in

their public employment; the City doesn’t contend otherwise.

The plaintiffs cite Spreen v. Brey, 961 F.2d 109 (7th Cir.

1992) to support their due process claim. In that case,

we held that the plaintiff would be entitled to certain

procedural due process rights if the city made material

misrepresentations to induce her to resign. Id. at 112.

Spreen doesn’t help the plaintiffs because unlike in that

case, the plaintiffs haven’t brought forth any evidence

that the City made misrepresentations to induce them

to retire early. The City held meetings to explain the

ERIP, which the plaintiffs attended. The plaintiffs voluntarily took part in the ERIP with full knowledge that

negotiations for the 2003-2007 CBAs were underway

and accordingly, no agreement as to retroactive wage

increases had been reached. If any duty was owed to

the plaintiffs to inform them about the status of these

negotiations, it was owed by their union. See 5 Ill. Comp.

Stat. 315/6(c) (stating that the union “is the exclusive

representative for the employees . . . with respect to rates

of pay, wages, hours and other conditions of employment.”). As stated above, the City was open about its

intentions not to pay raises without cost-saving concessions. Even though the plaintiffs had to choose whether

to accept early retirement when raises were uncertain,

such a choice doesn’t establish coerced resignation. See

Palka v. Shelton, 623 F.3d 447 (7th Cir. 2010) (finding no

coerced resignation even though plaintiff was forced to
Nos. 10-2114, 10-2243, 10-2814, & 10-2921 23

choose between resigning to protect his retirement

benefits or clearing himself before the Merit Board), cert.

denied, 131 S. Ct. 1680 (2011). Because their retirement

was voluntary, the plaintiffs were not deprived of a

protected property interest by state action.

III. Conclusion 

We AFFIRM in part and REVERSE and REMAND in part

with instructions to the district court to enter summary

judgment for the City on the plaintiffs’ implied contract

claim.

8-24-11