In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 04-2782

CASIMIR STACHOWSKI,

Plaintiff-Appellant,

v.

TOWN OF CICERO,

Defendant-Appellee.

____________

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 04 C 282—James F. Holderman, Judge.

____________

ARGUED JANUARY 5, 2005—DECIDED OCTOBER 14, 2005

____________

Before KANNE, ROVNER, and SYKES, Circuit Judges.

SYKES, Circuit Judge. Casimir Stachowski (“Stachowski”), a policeman for the Town of Cicero (the “Town”),

defrauded the Town out of nearly $53,000 by making false

overtime claims. The Town suspended him without pay and

petitioned the Board of Fire, Police, and Public Safety

Commissioners (the “Board”), seeking Stachowski’s termination. After hearings, the Board issued a decision stating that termination was “appropriate.” Stachowski took the

position that this decision was nothing more than a recommendation and did not appeal. Instead, he applied for

retirement and was awarded pension benefits. Then,

claiming that his employment was never actually terminated, Stachowiski sued the Town for depriving him of
2 No. 04-2782

property—the salary he did not receive while he was

suspended—without due process of law. He also asserted an

equal protection claim. The district court dismissed

Stachowski’s lawsuit for failure to state a claim, see FED. R.

CIV. P. 12(b)(6), and Stachowski appeals. We affirm.

I. Background

Stachowski spent twenty-one years in service as a Town

of Cicero police officer before he was caught in 1997 making

false overtime claims totaling nearly $53,000. Stachowski

was suspended without pay and the Town initiated termination proceedings before the Board. Hearings were held,

but for reasons not apparent in the record, the Board did

not issue a decision until 2003. When the Board finally

decided the termination petition, this is what it wrote: “[I]t

is appropriate to terminate Casimir Stachowski for each of

the violations [alleged against him]. This decision is subject

to review pursuant to the Illinois Administrative Review

Act . . . .” The Board denied Stachowski’s subsequent

request for a hearing, stating that it had “previously found

that due to the severity of the charges which respondent

was found guilty of, the only proper discipline was termination.”

Despite the Board’s findings, Stachowski enjoys the

status of a retired police officer. Shortly after the Board’s

decision finding termination to be “appropriate,” Stachowski

applied for retirement benefits. This application was

approved by the Town of Cicero Police Pension Board, a

body independent of the disciplinary board that heard the

Town’s petition to terminate Stachowski’s employment.

Apparently the $53,000 in ill-gotten gains plus retirement

benefits were not enough. Stachowski sued the Town,

claiming that he was never actually fired and the withholding of pay during the period of his suspension was a

violation of his due process and equal protection rights.
No. 04-2782 3

Stachowski’s lawsuit did not get far in district court.

Holding that the Board’s order was, in fact, a final decision

to terminate Stachowski’s employment, the district court

granted the Town’s motion to dismiss pursuant to Rule

12(b)(6). Regarding Stachowski’s due process claim, the

district court held that Stachowski was afforded due process

under Illinois law in two respects. First, Stachowski

received a final termination decision from the Board, which

he could have appealed pursuant to the Illinois Administrative Review Act, 735 Ill. Comp. Stat. 5/3-101. Second, if

Stachowski truly believed that the Board’s decision was not

final and therefore not appealable, he could have petitioned

an Illinois court for a writ of mandamus, requiring the

Board to clarify whether its order was final. The district

court also dismissed Stachowski’s equal protection claim for

failure to allege that similarly situated Town police officers

were treated differently. More specifically, the court noted

that Stachowski had not alleged that other police officers

terminated for serious misconduct nevertheless received

back pay for periods of unpaid suspension. Stachowski

moved the district court to reconsider its judgment under

Federal Rule of Civil Procedure 59(e), but the district court

was not persuaded. Stachowski appeals the judgment.

II. Discussion

Stachowski’s arguments on appeal rely on a single flawed

premise—that the Board’s decision finding termination to

be “appropriate” was not a final order of termination and

thus had no legal effect. From this faulty premise

Stachowski argues he was deprived of property—the wages

he was not paid between his “unauthorized” 1997 suspension and his 2003 retirement—without due process of law,

and also that his right to equal protection was violated.

Stachowski does not attack the adequacy of the predeprivation process he received, nor does he directly
4 No. 04-2782

challenge the statutory postdeprivation procedure for

reviewing actions of Illinois police disciplinary boards.

See Veterans Legal Defense Fund v. Schwartz, 330 F.3d 937,

939-40 (7th Cir. 2003); 735 ILCS 5/3-101 et seq. Rather, he

contends that he was held in administrative limbo—unable

to collect pay during his suspension yet unable to obtain

review of any adverse termination decision because no

adverse decision had been made. Stachowski’s equal

protection argument is similar. He claims entitlement to

back wages for the period of disciplinary suspension

between 1997 and 2003 because his employment was never

officially terminated. As far as we can tell, the equal

protection “hook” here is Stachowski’s assertion that

because he was never actually terminated, he is similarly

situated to other police officers who retire without having

been subjected to disciplinary suspension and termination.

When a district court grants a motion to dismiss under Rule 12(b)(6), our review is de novo. Barnes v. Briley,

420 F.3d 673, 677 (7th Cir. 2005). We look to the pleadings,

taking the facts pleaded as true and construing all reasonable inferences in favor of the plaintiff. Id. We are not

required, however, to accept assertions of law or unwarranted factual inferences. N. Trust Co. v. Peters, 69 F.3d

123, 129 (7th Cir. 1995). If there is no set of facts that

would entitle Stachowski to relief, the district court’s

judgment of dismissal must be affirmed. See id.

We begin by rejecting Stachowski’s premise that the

Board’s decision was not final. The language that “it is

appropriate to terminate Casimir Stachowski” was in

response to the Town’s petition that Stachowski be terminated. Any reasonable view of this language demands the

conclusion that the Board granted the Town’s request to

terminate Stachowski. The Board went on to note that its

decision was subject to review pursuant to the Illinois

Administrative Review Act. In Illinois only final agency

decisions are reviewable. 735 ILCS 5/3-101 & 102.
No. 04-2782 5

Stachowski argues that pronouncing a decision reviewable

does not necessarily make it so, but in this case that

pronouncement unmistakably indicates the Board’s intention to issue a final decision. Moreover, any doubt about the

decision’s finality was dispelled by the Board’s later order

denying Stachowski’s follow-up request for a hearing: the

“Board previously found that due to the severity of the

charges which respondent was found guilty of, the only

proper discipline was termination.” Perhaps the Board’s

order could have been more emphatically worded—

“Stachowski is hereby terminated,” or “It is so ordered,” or

something of the kind—but there can be no doubt that the

Board’s order was a final decision to terminate Stachowski

for his misconduct.

Since the Board’s decision was final, Illinois law afforded

Stachowski all the process he was due. Procedural due

process requires the availability of adequate postdeprivation remedies. Veterans Legal Def. Fund, 330 F.3d at

941. Stachowski could have sought administrative review of

the Board’s final decision under the Illinois Administrative

Review Act. See 735 ILCS 5/3-101 to 113. Indeed, the

Board’s decision informed him of that right. Stachowski’s

failure to pursue the procedures available to him does

not give rise to a due process claim. Veterans Legal Def.

Fund, 330 F.3d at 941. His subjective belief that the Board’s

order had no effect cannot form the basis of a due process

claim.

Stachowski’s equal protection claim likewise fails. The

“class of one” equal protection claim that Stachowski tried

to make requires, among other things, that he was treated

differently than others similarly situated. McDonald v. Vill.

of Winnetka, 371 F.3d 992, 1001 (7th Cir. 2004). Stachowski’s argument is that, like other police officers who retire

after careers untarnished by official disciplinary action, he

is entitled to the back pay that accrued during his suspension. But given our conclusion that the Board’s order was a
6 No. 04-2782

final order of termination for misconduct, Stachowski is not

similarly situated to other officers who retire with untarnished records and he has thus failed to state an equal

protection claim. See Purze v. Vill. of Winthrop Harbor, 286

F.3d 452, 455 (7th Cir. 2002) (holding that “[i]n order to

succeed, [plaintiff] must demonstrate that [he was] treated

differently than someone who is prima facie identical in all

relevant respects”). Stachowski has not alleged that he was

treated differently than other officers who were awarded

retirement benefits after suspension and then

termination for misconduct.

The district court’s judgment is AFFIRMED.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—10-14-05