## In the 

# United States Court of Appeals
For the Seventh Circuit

____________

No. 05-3689

W ILLIAM H. M OSS , Plaintiff-Appellant

, v.

T IMOTHY M ARTIN , R OBERT M ILLETTE , and B RIAN P IERSMA , Defendants-Appellees.

____________ Appeal from the United States District Court for the Central District of Illinois. No. 04 C 3217— Jeanne E. Scott

, Judge.

____________ A RGUED N OVEMBER 9, 2006—D ECIDED J ANUARY 2, 2007

____________

Before B AUER , P OSNER , and F LAUM , Circuit Judges

. B AUER , Circuit Judge . William Moss brought this civil rights action against Illinoi s Department of Transportation (“IDOT”) employees Timo thy Martin, Robert Millette,and Brian Piersma, seeking monetary and injunctive relief under 42 U.S.C. §§ 1983 and 1988. Moss alleges that he was fired from his position as the IDOT’s Chief of the Highway Sign Shop because of his political affiliation, in violation of the First Amendment, and without due process, in violation of the Fourteenth Amendment. Pursuant to Fed. R. Civ. P. 12(c), the defendants moved for judgment on the pleadings, which the district court granted. For the reasons statedherein, we affirm in part and reverse and remand in part.2 No. 05-3689

I. Background
The IDOT is the department in Illinois’ state government that is responsible for developing a statewide master plan for transportati on, spending state funds for roads and highways, developing and coordinating effective programs and activities to facilitate the movement of motor vehicle traffic, and protecting and conserving life and property on Illinois’ streets and highways. See 20 I LL

. C OMP

. S TAT . 2705/2705-200, 255, 210 (2004). The IDOT is headed by the Secretary of Transportation, who oversees the IDOT’s five Divisions and five Offices. 2 I LL

. ADMIN

. C ODE 1225.210(b). The Division of Highways has ten separate bureaus, including th e Bureau of Operations. The Bureau of Operations consis ts of the Central Bureaus of Construction, Maintenance, Materials and Physical Research, and Traffic. 2 I LL

. ADMIN

. C ODE 1225.280(b). The Highway Sign Shop falls withinthe Bureau of Operations.

According to the IDOT position description, the Chiefof the Highway Sign Shop “is accountable for administering the Highway Sign Shop Section of the Bureau of Operations.” The Chief “f ormulates and implements policies, procedures, programs, and operational concepts for maintenance and rehabilitation of the department’s extensive sign and raised pavement marker systems throughout the state.” In particular, the Chief “directs the manufacture and distribu tion of all standard highway signs” and “directs the f abrication and installation of overlay panels for rehabilitat ion of the statewide freeway sign network.” The Chief al so “maintains the department’s comprehensive raised pavement marker systemin all highway districts and supervises a complete inventory, accounting, and budgetary system to administer a specific budget allocation for support of section activities.”
The Chief supervises approximately five employees directly and twenty employees indirectly. The ChiefNo. 05-3689 3

1 The district court misinterpreted the overall values associated with the sign system and pavement marker system in the position description as an annual operating budget for the Highway Sign Shop of more than $100 million.reports directly to the Engineer of Operations and maintains contact with the Distri ct Engineers, Traffic Engineers, and Traffic Operations personnel in all district offices and other central bureaus. The Chief is in contact with the Department of Corrections, representatives ofother states, governmental agencies, research organizations, private sign fabricators, suppliers of raw materials and installation equipm ent, and contractors.
The position description specifies that the Chief has both technical and managerial responsibilities: the Chief “is personally responsible for providing standard signs and sign making materials, directing the fabrication andfield activities required to meet the department’s statewide objectives for freeway sign and raised pavement marker rehabilitation, and administering the section’s budgetary and manpower resources.” The Chief also “develops programs, policie s and procedures to address sign and raised pavement ma rker maintenance needs” and “administers the Sign Shop budget and prepares annual budget and long-range program requests . . . .” While the value of the sign system is approximately $104 million and the value of the raised pavement markersystem is approximately $9 million, the annual operating expenses of the Highway Sign Shop are approximately $3.7 million. This figure includes the annual expenses associated with the fabrication of between 60,000 and 70,000 standard signs, the refurbishment of 100,000 square feet of sign panels, and the maintenance of 25,000 raised pavement markers. 14 No. 05-3689

On March 16, 2001, Moss became a certified employee of the IDOT. His employment as Chief of the Highway Sign Shop was terminated on April 26, 2004. Moss filed suit against the IDOT defendants on September 24, 2004, alleging that he was terminated because of his political affiliation even though his po litical affiliation was irrelevant to his job duties. He claimed that his terminationviolated his First Amendment right to political affiliation and, because it was without any pre-termination hearing or proceeding, his Fourteenth Amendment right to due process. The IDOT defendants moved for judgment on the pleadings, attaching the po sition description for the Chief of the Highway Sign Sh op to their motion. The district court granted the defendants’ motion, finding that the functions of Moss’ position rendered his political affiliation a proper employment consideration. The district court also concluded that Moss had failed to state a due process claim because his comp laint failed to allege any basis that would support a finding that he had a property interest in his continued employment with the IDOT. The district court granted Moss leave to file an amended due process claim.
In his amended complaint, Moss asserted that the IDOT’s Personnel Policy Manual (the “Manual”) gave riseto an enforceable property right in his continued employment with the IDOT because the Manual requires thatterminations only be for cause. The defendants attached the Manual to their answer to the amended complaint and filed another motion for judgment on the pleadings, which the district court granted. The district court found that the disclaimer language contained in the foreword section of the Manual negated any contention that the Manual created a contract of employment. And even if the Manual created a contract, the district court concluded that the Manual contained language thatNo. 05-3689 5

allowed the termination of an employee either with or without cause. This timely appeal followed.

II. Analysis A. Political Affiliation as a Valid Qualification for Employment Moss first argues that the dist rict court erred in granting the IDOT defendants’ motion for judgment on the pleadings because Moss’s position as Chief of the Highway SignShop is not the type of position for which a politicallymotivated personnel action is constitutionally permitted. Under Rule 12(c), a party can move for judgment on the pleadings after the filing of the complaint and answer. Brunt v. Serv. Employees Int’l Union , 284 F.3d 715, 718 (7th Cir. 2002) ( citing Fed. R. Civ. P. 12(c)). Only when it appears beyond a doubt that the plaintiff cannot prove any facts to support a claim for relief and the moving party demonstrates that there are no material issues of fact to be resolved will a court grant a Rule 12(c) motion. Id. at 718- 19 ( citing N. Indiana Gun & Outdoor Shows, Inc. v. City of South Bend , 163 F.3d 449, 452 (7th Cir. 1998)). We review a district court’s ruling on a Rule 12(c) motion de novo

. Id. at 719. If the nature of a public official’s job makes political loyalty a valid qualification for the effective performance of his position, that officialmay be terminated on the basis of his political affiliation. Riley v. Blagojevich , 425 F.3d 357, 359 (7th Cir. 2005) ( citing Elrod v. Burns , 427 U.S. 367-68, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976); Branti v. Finkel , 445 U.S. 507, 518, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980)). To determine whether political loyalty is a valid qualification, we cons ider whether the employee’s position entailed “the making of policy and thus the exercise of political judgment.” Allen v. Martin , 460 F.3d6 No. 05-3689

939, 944 (7th Cir. 2006) ( quoting Kiddy-Brown v. Blagojevich , 408 F.3d 346, 355 (7th Cir. 2005)). We also consider the degree of discre tion and responsibility exercised in the position by examining the official job description for the position. Id . at 944-945; Selch v. Letts , 5 F.3d 1040, 1044-45 (7th Cir. 1993). “We only look past the official job description where the plaintiff demonstrates systematic unreliability.” Allen , 460 F.3d at 944. To show such systematic unreliability, a plaintiff “must provide specific facts demonstrating that the description was unreliable and unauthoritative.” Id.
On prior occasions, we have held that political affiliation is an appropriate requir ement for various positions within state highway departments. See Selch , 5 F.3d at 1047 (political affiliation appropriate requirement for position of subdistrict superi ntendent of Indiana Department of Highways); Allen , 460 F.3d at 945 (political affiliation appropriate requirement for IDOT’s bureau chief of accounting and auditing). Vi ewing the allegations in the light most favorable to Moss, however, we cannot conclude at this early stage in the litig ation that political loyalty is a valid qualification for the Chief of the Highway Sign Shop position. “Almost all jobs in government above the lowest level require the holder of the job to exercise at least a modicum of discretion . . . .” Riley , 425 F.3d at 359. The Chief of the Highway Sign Shop is no different. The Chief “exercises substantial independent judg ment in making decisions concerning the development and implementation of innovative rehabilitation procedures”; “is afforded broad latitude in accomplishing his/her duties”; and “formulates and implements policies, procedures, programs, and operational concepts . . . .” The use of buzz words such as “formulates policies,” “broadlatitude” and “substantial independent judgment” in a position description does not transform professional or technical judgment into politicalNo. 05-3689 7

judgment, however. In his complaint, Moss alleged that there is nothing in the job duties of the Chief of theHighway Sign Shop that made or makes political considerations a requisite for that position. The position description alone does not refu te this allegation conclusively, as it raises and fa ils to answer numerous questions as to the judgment and discretion exercised by the Chief of the Highway Sign Shop.

In particular, while the Highway Sign Shop is within the Bureau of Operations, we do not know where the Chief of the Highway Sign Shop position falls within IDOT’s overall hierarchy. We do not know what policies the Chief implements: whet her such policies merely ensure that signs are properly repaired or manufactured or whether they affect the IDOT’s broader policies and delivery of services. We do not know Moss’s salary. We do not know what contact, if any, the Chief of the Highway Sign Shop has with public officials or citizens regarding signs. Cf. Selch , 5 F.3d at 1047 (subdistrict superintendent received between fifteento twenty telephone calls a day from public officials and citizens); Allen , 460 F.3d at 945 (major challenge of bureau chief’s position is to respond to legislator questi ons on fund expenditures in their districts).
The position description states that the Chief makes budget requests and admi nisters resources and manpower to operate the sign shop, but it does not mention whether the Chief has the powe r to enter into contracts. During oral argument, Moss represented that the Chief does not decide what signs are erected or where or when signs are installed. Cf. Selch , 5 F.3d at 1046 (subdistrict superintendent decided wher e and when road maintenance work was to be comple ted). He does not overseethe crews that place the signs. In the absence of additional evidence as to the f unctions of the Chief and the policies developed and enforced by the Chief, the extent of8 No. 05-3689

any political value associated with these functions and policies is also unclear. Cf. Selch , 5 F.3d at 1046 (stating that “the successful implementation of policy in the area of highway maintenance would likely have substantial effect on the public’s perce ption of the Democratic administration”); Allen , 460 F.3d at 945 (“[T]he effective and reliable execution of the Bure au’s audit function is of great political value.”). While a better-developed record may demonstrate that political affiliation is a valid requirement for the Chief of the Highway Sign Shop, wesimply do not have enough evidence to reach that conclusion now.

B. Due Process
Moss argues next that the district court erred in concluding that he had no protected property interest in his continued employment with the IDOT and by granting defendants’ motion for judgme nt on the pleadings on hisdue process claim. Moss argues that the Manual specifically prohibited the abridgement of his constitutional right to choose his political party and that the language in the Manual prohibiting these actions was mandatory.
To establish a due process claim, Moss must demonstrate (1) that he had a constitutionally protected propertyinterest, (2) that he suffered a loss of that interest amounting to a deprivation, and (3) that the deprivation occurred without due process of law. Kiddy-Brown , 408 F.3d at 360 ( citing Polenz v. Parrott , 883 F.2d 551, 555 (7th Cir. 1989)). Because Moss was employed in I llinois, we look to Illinois law to determine whether he had a property interest in his employment with the IDOT. Johnson v. City of Fort Wayne, Ind. , 91 F.3d 922, 943 (7th Cir. 1996).

Under Illinois law, a personhas a property interest in his job only where he has a legitimate expectation ofNo. 05-3689 9

continued employment based on a legitimate claim of entitlement. Krecek v. Bd. of Police Comm’rs of La Grange Park , 646 N.E.2d 1314, 1318, 271 Ill.App.3d 418 (Ill. App. Ct. 1995) ( citing Faustrum v. Bd. of Fire and Police Comm’rs of the Village of Wauconda , 608 N.E.2d 640, 641, 240 Ill. App. 3d 947 (Ill. App. Ct. 1993)). “To show alegitimate expectation of continued employment, a plaintiff must show a specific ordi nance, state law, contract or understanding limiting the ab ility of the state or state entity to discharge him.” Id. at 1318-19. Moss’s due process claim fails because the Manual, on which he bases his due process claim, does not give rise to a legitimate expectation of continued employment.

Although Illinois law presume s that an employee hired for an indefinite period may be discharged at will forany reason, it also recognizes that employment handbooks have the potential to form contracts between employers and workers. See Duldulao v. Saint Mary of Nazareth Hospital Center , 505 N.E.2d 314, 317-18, 115 Ill.2d 482 (Ill. 1987). A handbook that contains a clear promise of continued employment gives rise to legal entitlements. Id. at 318. At the same time, disclaiming language in a handbook may preclude the formation of an employment contract. See Davis v. Times Mirror Magazines, Inc. , 697 N.E.2d 380, 388, 297 Ill.App.3d 488 (Ill. App. Ct. 1998).
In the first paragraph of it s foreword, the Manual states,

This manual is provided to better acquaint you with the personnel policies of the Illinois Department of Transportation and does not constitute a contract of employment in whole or in part

. The Department reserves the right to add, amend or delete any benefit or policy stated herein at any time , except as otherwise committed to by collective bargaining agree-10 No. 05-3689

ments and the Department of Central Management Services’ Personnel Rules.
(emphasis added). Under I llinois law, this unambiguous disclaimer is sufficient to sh ow that the Manual does not create a legal right. See Davis , 697 N.E.2d at 388; Habighurst v. Edlong Corp., 568 N.E.2d 226, 227, 209 Ill.App.3d 426 (Ill. App. Ct. 1991); Anders v. Mobil Chemical Co. , 559 N.E.2d 1119, 1122, 201 Ill.App.3d 1088 (Ill. App. Ct. 1990); see also Garcia v. Kankakee County Housing Authority , 279 F.3d 532, 536 (7th Cir. 2002). Moreover, the disclaimer wa s not buried or otherwise hidden: it was the first subs tantive text in the Manual and it was set forth in same typeface as the rest of the Manual. That the Manual also states that an employee “may be discharged for cause” does not change our analysis. This permissive language does not conflict with the disclaimerthat the Manual “does not constitute a contract of employment in whole or in part” or create an ambiguity that can be construed in Moss’s favor. Cf. Perman v. ArcVentures, Inc. , 554 N.E.2d 982, 987, 196 Ill.App.3d 758 (Ill. App. Ct. 1990) (summary judgment denied on due process claim where disclaim er in employee manual was “not set off from the rest of the text, printed in capital letters or titled” and manual stated that “discharges

mustbe approved in advance by the director of employee relations or designees, and are subject to employee appeal through established grievance procedures ”) (emphasis added). See also Seehawer v. Magnecraft Elec. Co. , 714 F. Supp. 910, 912 (N.D. Ill. 1989) (denying summary judgment on plaintiff’s due process claim where employee manual stated that “[e]mploy ees shall be discharged or disciplined onlyfor just cause” while employee statement signed by plaintiff stated that “my employment and compensation can be te rminated, with or withoutNo. 05-3689 11

cause and notice, at any time, at the option of the Company or myself.”) (emphasis added).

Nor do the Manual’s mandat ory notice procedures for a discharge for cause allow Moss to state a due process claim. An employee manual or handbook’s procedures do not create an enforceable property right to a job. See Simpkins v. Sandwich Community Hosp. , 854 F.2d 215, 218 (7th Cir. 1988); Heck v. City of Freeport , 985 F.2d 305, 311 (7th Cir. 1993) (stating that “[m]ere procedural rights . . . do not of themselves give rise to property interests protected under the Fourteenth Amendment”).
Likewise, the provisions thatstate that “the rights of department employees to vol untarily engage in political activities and to make cont ributions must be recognized and respected” and that “nothing should be done toabridge the constitutional right of any employee to participate in the political proce ss” do not conflict with the Manual’s disclaimer or othe rwise create an ambiguity that overcomes Illinois’ at -will presumption. Such language sets forth the IDOT’s requirements for the conduct of its employees. It does not establish a basis on which an offer of employment may be found. Moreover, interpreting such “language as establishing a just cause termination protection simply ignores the reality of employment law in Illinois and the need to re ad the Handbook as a coherent whole.” Border v. City of Crystal Lake , 75 F.3d 270, 274 (7th Cir. 1996). The language of the Manual’s disclaimer is clear: no employee reading the Manual could believe reasonably that an employment contract offer had been made. We find, therefor e, that the district court properly granted defendants’ Ru le 12(c) motion for judgment on the pleadings onMoss’s due process claim.12 No. 05-3689

C. Qualified Immunity

The IDOT defendants raise the defense of qualified immunity as an alternative basis on which to affirm judgment in their favor, ar guing that the law on this issue was not clearly establis hed at the time of Moss’stermination. “Government officials performing discretionary functions are entitled to qualified immunity from suit ‘as long as their actions could reasonably have been thought consistent with the rights they are alleged to have violated.’ ” Kiddy-Brown , 408 F.3d at 352 ( quoting Anderson v. Creighton , 483 U.S. 635, 638, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987)).

To defeat a qualified immunity defense, a plaintiff must satisfy two conditio ns: (1) the complaint must adequately allege facts that, if true, would constitute a violation of a constitutional right; and (2) the case law must be “clearly established” at the time of the alleged violation, so that a reasonable public official would have known that his conduct was unlawful. Delgado v. Jones

, 282 F.3d 511, 515-16 (7th Cir. 2002). As established above, Moss has satisfied the first condition by pleading a viableFirst Amendment claim. With regard to the second condition, the IDOT defendants argue that the law was not clearly established that political loyalty was not an appropriate job requirement for the Chief of the Highway Sign Shop. Moss is not required to produce a case thatis “directly on point” to show that a right is clearly established, however. Kiddy-Brown , 408 F.3d at 355 ( quoting Nabozny v. Podlesny , 92 F.3d 446, 456 (7th Cir. 1996)). Rather, “[t]he question is whether a reasonable state actor would have known that his actions, viewed in the light of the law at the time, were unlawful.” Id.
We have accepted as true Moss’s allegation that political affiliation is not an appropriate requirement for the Chief of the Highway Sign Shop position because there isNo. 05-3689 13

nothing in the Chief’s job du ties that made or makes political considerations a requisite for that position. At this point, we also have accept ed as true, albeit implicitly, that Moss was an IDOT empl oyee who did not engage in policymaking. As a result, Moss was an I DOT employee who could not be terminated because of his political affiliation. At the time of his termination, “it was wellestablished that the First Amendment prohibits a state official from dismissing, on political grounds, an employee who was not charged with policymaking duties.” KiddyBrown , 408 F.3d at 357. Judgment on the pleadings in favor of the IDOT defendants on the basis of qualified immunity is therefore inappropriate. The issue of whether the IDOT defendants are entitled to qualified immunity may be revisited and resolved in the district court on a more complete record. See id.

III. Conclusion
For the foregoing reasons, we affirm the district court’s entry of judgment on the pl eadings in favor of defendants on Moss’s due process cl aim but reverse the district court’s entry of judgment on the pleadings in favor of defendants on Moss’s First Amendment claim and remand for further proceedings.

A true Copy:

Teste:

________________________________ Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—1-2-07