2022 IL App (2d) 210555-U No. 2-21-0555 Order filed May 31, 2022
NOTICE: This order was filed under Supreme Court Rule 23(b) and is not precedent except in the limited circumstances allowed under Rule 23(e)(l). ______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT ______________________________________________________________________________
JOSHUA McELROY, ) Appeal from the Circuit Court ) of Kendall County. ) Plaintiff-Appellant, ) ) v. ) No. 19-MR-19 ) OSWEGO FIRE PROTECTION DISTRICT, ) an Illinois municipal corporation, and MIKE ) VESELING, Fire Chief of the Oswego Fire ) District, ) Honorable ) Stephen Krentz, Defendants-Appellees. ) Judge, Presiding. ______________________________________________________________________________
JUSTICE HUDSON delivered the judgment of the court. Presiding Justice Bridges and Justice Hutchinson concurred in the judgment.
ORDER
¶1 Held: Trial court did not err in granting summary judgment in favor of defendant where plaintiff failed to establish that he suffered a pre-deprivation violation of his due process rights; other issues were moot.
¶2 I. INTRODUCTION
¶3 Plaintiff, Joshua McElroy, appeals the grant of summary judgment entered in favor of
defendant, Mike Veseling (defendant or Veseling), by the circuit court of Kendall County
(plaintiff’s appeal does not concern the Oswego Fire Protection District (the District) (where 2022 IL App (2d) 210555-U
necessary, we refer to Veseling and the District collectively as defendants). Plaintiff alleges he
was denied due process in his purported termination from employment with defendant.
Specifically, plaintiff argues that he was deprived of his right to pre-termination due process
protections; that the trial court erroneously determined that he had voluntarily resigned; that the
availability of a post-termination remedy constituted insufficient process to safeguard his rights;
and that the trial court erred in finding defendant was entitled to qualified immunity. For the
reasons that follow, we affirm.
¶4 II. BACKGROUND
¶5 Plaintiff was employed by the District as a paramedic. Paramedics must be licensed. His
license lapsed in June 2018. This was discovered in January 2019. Plaintiff was given the choice
of resigning or going through a disciplinary process. Plaintiff resigned.
¶6 In his discovery deposition, plaintiff testified that he first got his paramedic license in
October 1998. Paramedic licenses are valid for four years. Licenses are issued through the
Southern Fox Paramedic System. He worked as a paramedic for two other employers before
becoming employed by the District in 2005 in a contract position. In 2008, he became a full-time,
commissioned firefighter/paramedic with the District. Plaintiff was aware that he had to maintain
a license as a condition of employment. Typically, when his license needed to be renewed, he was
contacted by Southern Fox by letter. Plaintiff did not recall receiving notice from anyone other
than Southern Fox. Typically, plaintiff would receive one-months’ notice. When a license needed
to be renewed, one would give a copy of the license to the EMS coordinator, Matt Goodbred.
¶7 Plaintiff agreed that his license expired in 2018. He further agreed that keeping track of
the expiration of his license was his responsibility. Nevertheless, he alleged that, in 2018, he never
received a renewal notice from Southern Fox. Plaintiff had moved prior to 2018, and he stated
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that he had provided Southern Fox with his new address. Plaintiff further agreed that he had
practiced as a paramedic for six or seven months without a license.
¶8 Plaintiff testified that he first became aware that his license had expired on January 7, 2019.
Prior to this date, plaintiff had approached Goodbred “a couple times to check into [his] address
update.” Goodbred told plaintiff to check with Edwin Huelstrunk at Southern Fox. Plaintiff did
so, and, while speaking to Huelstrunk in the spring of 2018, told him that he had misplaced his
physical license. Huelstrunk told plaintiff that he should not “worry about it, [as] it’s in electronic
files, and [plaintiff would] be notified a month before.” On January 7, 2019, he inquired of
Goodbred regarding his license, and Goodbred checked into its status. Goodbred is an employee
of the District. Plaintiff stated that, between June 2018 and January 2019, he had a couple
conversations with Goodbred regarding his license status.
¶9 On January 7, 2019, plaintiff was working. He approached Goodbred and told him that
they needed to look into his license status. Goodbred pulled up records and learned plaintiff’s
license had been expired for six months. Goodbred said that he needed to contact some people,
and that he would get back to plaintiff. Later that day, plaintiff was working at Station 3.
Lieutenant Craig Barz informed plaintiff that the battalion chief had ordered plaintiff to report to
Station 1 for a meeting. Plaintiff was instructed to use his personal vehicle to get there. Barz did
not tell plaintiff the purpose of the meeting.
¶ 10 Plaintiff arrived at Station 1 and went to the conference room. The president of the local
chapter of the union, Robert Carpenter, was there. Also present were Chief Veseling (defendant),
Chief Flanders, Chief Cornish, Chief Warren, and Acting Chief Cave. Cornish “did the talking.”
Cornish said that he had one yes-or-no question: did plaintiff have a paramedic license? Claimant
stated, “No.” Cornish said that claimant was on administrative leave, effective immediately, and
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he directed plaintiff to Goodbred to get his license reinstituted. No other questions were directed
to claimant that day. Claimant was directed to report to the conference room at 6:45 a.m. on his
next duty day, which was January 10, 2019. Prior to the January 10 meeting, plaintiff had gathered
paperwork from Goodbred and had gone to Southern Fox. Southern Fox gave him a packet and
some instructions regarding how to remedy the situation. Plaintiff hand-carried the required
documents and payment to Springfield and turned them in. Plaintiff was not immediately
recertified and was informed that he might have to take some additional steps due to the amount
of time he was unlicensed.
¶ 11 On January 10, plaintiff arrived at Station 1 as directed. Cornish informed him that there
might be a delay. While he was waiting, he was contacted by the licensing authority and informed
he would have to take a test before he was reinstated. However, later that morning, plaintiff was
informed that they would “move forward with the relicensure.” He was also informed that his
address had never been updated and that they were having some issues with Huelstrunk (though
they did not disclose what sort of issues). Plaintiff clarified that some of these calls took place
between January 7 and January 10. At some point, plaintiff moved to the union office. He
completed an online payment, and his license was reinstated that morning. Claimant asked
Carpenter for his opinion about the matter. Claimant related Carpenter’s opinion:
“And he said, I’m really scared for you at this point in time. I’d hate to see them press
criminal charges which they have been advised that they could do and you to be taken away
in handcuffs, and I looked at him and said, Obviously that’s not a situation I want to be
part of with a wife and six kids, and he was saying—he said, Well, that’s where they’re at
right now, and they’re getting antsy in the boardroom and want a reply from you shortly
here. And I said, Well, what’s the reply? And he said, They're going to give you two
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options, that you can be terminated or you can resign.”
Carpenter was the first person to mention criminal sanctions to plaintiff. Carpenter told plaintiff
that the District had consulted with counsel and been informed the there was potential criminal
liability for plaintiff. Plaintiff agreed that “no chief officer ever said that to [him.]” Carpenter told
plaintiff that he had to resign or would be terminated. Plaintiff stated that he did not understand
the process as he does now, but he was aware that there was some process as to how discipline
occurred embodied in the collective bargaining agreement applicable to him. When asked whether
he was aware that the Chief could not simply fire him, he stated, “I wasn’t sure of that, no.”
Regarding claimant’s possible criminal liability, plaintiff stated that Carpenter “made the
statement in reference to the chiefs” and “their legal counsel.”
¶ 12 Plaintiff, Carpenter, and another individual from the union (Tyler) returned to the
conference room and met with Veseling, Cornish, and Flanders. Cornish stated, “This is going to
pretty much be a one-way conversation.” He continued, “You have two choices, and one of them
is going to be to go through the termination process and the other is going to be to resign.”
Claimant stated, “I believe I’m going to have to resign.” Cornish had plaintiff go to Cornish’s
office and type a resignation letter. Plaintiff said he was not sure what he should say, and Cornish
“gave [him] two sentences.” As they left the office, Goodbred stopped Cornish and informed him
that plaintiff’s license had been renewed.
¶ 13 In the resignation letter, plaintiff wrote, “I have made this choice for personal reasons.”
Plaintiff agreed that he could have chosen not to resign. If he did not, he would have gone through
the disciplinary process; however, plaintiff stated that it was his understanding that the union
would not back him. Plaintiff acknowledged that when he met with defendant on January 10, they
did not ask him any questions. Carpenter advised plaintiff that the union did not see things ending
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favorably for plaintiff and opined that it would be best for plaintiff to resign. Plaintiff did not ask
to consult with an attorney. Plaintiff acknowledged that he heard about the possibility of criminal
sanctions from Carpenter and that when he met with the chiefs on the day he resigned, the only
thing they said was that plaintiff had two options, resignation or the disciplinary process. Plaintiff
later stated that the choice he was given was between resignation and termination.
¶ 14 Plaintiff testified that he was aware that the collective bargaining agreement under which
he and the District operated contained rules and procedures concerning terminating or disciplining
an employee.
¶ 15 Veseling also testified via discovery deposition. He stated that he is the Fire Chief of the
Oswego Fire Protection District. Veseling testified that paramedics are required to be licensed by
the Illinois Department of Public Health. Matt Goodbred is the District’s Emergency Medical
Services Coordinator. It is Goodbred’s responsibility to ensure that all personnel are properly
licensed. On January 7, 2019, plaintiff was ordered to report to the station for a meeting. The
purpose of the meeting was to ask plaintiff if he had a paramedic license. Not having a license
would be a cause for disciplinary action. When asked whether this would include suspension or
termination, Veseling answered that it would depend on what the evidence showed. Plaintiff was
not advised that he could be represented by counsel, and he was not given any sort of document
outlining why he was potentially subject to discipline. Veseling added that they “hadn’t launched
an investigation at that point.” During this meeting, Chief Cornish, at the direction of Veseling,
asked plaintiff whether he had a paramedic license. Plaintiff stated that he did not. Veseling told
Cornish to place plaintiff on administrative leave, and Cornish did so. Plaintiff was told to report
back at 6:45 a.m. on his next duty day, which was January 10, 2019.
¶ 16 Plaintiff reported to the meeting on January 10. Three chiefs were present in addition to
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Veseling, as were three representatives of the union, including Carpenter. Veseling stated that
plaintiff would have to resign or “face disciplinary action through our normal process.” Veseling
testified that he could not say whether discipline would include a recommendation for termination,
as an investigation had not yet been conducted. Factors relevant to this determination included:
whether plaintiff’s failure to renew his license was intentional, whether plaintiff knew his license
was expired, and “[h]ow the whole failure to re-license occurred.” Veseling agreed that there
could have been mitigating circumstances that would have made discipline less severe than
termination appropriate. Veseling agreed that he never advised plaintiff that any charges were
being levied against him. Veseling directed Cornish to inform plaintiff that he would have to
resign or go through the disciplinary process. Veseling stated that plaintiff was never actually
asked whether he wished to resign or undergo the disciplinary process, as Carpenter informed the
chiefs that plaintiff intended to resign at the beginning of the January 10 meeting.
¶ 17 On cross-examination, Veseling testified that while plaintiff was on administrative leave,
he was still paid. The January 7 meeting was not for the purpose of disciplining plaintiff; rather,
it was simply to determine if plaintiff could continue to practice as a paramedic.
¶ 18 A discovery deposition of Carpenter was also conducted. At the time of plaintiff’s
resignation, Carpenter was the president of the local union. A collective bargaining agreement
exists between the union and the District. It contains a grievance process. Carpenter testified that
paramedics were required to maintain a license. When a license is due for renewal, a paramedic
typically gets a letter from the State. Carpenter recalled the January 7 meeting where plaintiff was
asked whether he had a paramedic license. Carpenter was there to represent plaintiff, and he would
have objected if plaintiff’s rights had been violated. Neither the union nor plaintiff filed a
grievance.
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¶ 19 Carpenter was also present for the January 10 meeting. He met with plaintiff before that
meeting and did not recall telling plaintiff that he could end up being led out of the meeting in
handcuffs. He did recall discussing whether criminal charges could follow, as plaintiff had been
doing things like handling narcotics while unlicensed, but no one told plaintiff he was going to be
charged with a crime. Carpenter told plaintiff he could “buy him some time if he needed to think
about things or try to figure out the direction he wanted to go.” Plaintiff decided he wanted to
resign. Following the meeting, plaintiff never attempted to file a grievance with the union
regarding how he had been treated.
¶ 20 On cross-examination, Carpenter agreed that when he met with plaintiff prior to the
January 10 meeting, he told plaintiff that the District “had a pretty good case against him.”
Carpenter did not recall speaking with any of the chiefs about the matter. He was aware that this
“was something that could have resulted in charges being filed against” plaintiff. Carpenter
characterized the meeting as an “informal inquiry,” which he explained was a “simple fact-finding
mission to see if there is any cause to move further to see if there is need for discipline.” Carpenter
reiterated that he did not recall meeting with any of the chiefs to discuss plaintiff’s situation prior
to the January 10 meeting. He did recall speaking with plaintiff about possible criminal charges
prior to the January 10 meeting. Carpenter testified that he had not discussed criminal sanctions
with the chiefs. Carpenter opined that there was nothing wrong with the process afforded plaintiff
in the meetings that led to his resignation.
¶ 21 The trial court granted summary judgment in favor of defendants. Pertinent here is the
court’s ruling on the second count of plaintiff’s complaint alleging constitutional violations
directed at Veseling. In the second count, plaintiff alleges he was deprived of his right to
procedural due process in that he was constructively discharged by Veseling without adequate
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notice and an opportunity to be heard. The court noted that there were two ways a plaintiff could
prevail on an involuntary resignation claim—coerced resignation or constructive discharge. The
first, which is applicable here, required evidence that the plaintiff was given “a Hobson’s choice
in which the employee must resign or suffer severe consequences, such as facing criminal
charges.” See Palka v. Shelton, 623 F. 3d 447, 453 (7th Cir. 2010). The trial court stated, “this
court finds no evidence of any coercion or duress that can be attributed to actions or statements of
any of the involved defendants.” The court then noted that being forced to choose between
resignation and discipline was insufficient to make such a showing. Id.
¶ 22 Plaintiff further argued that his decision to resign was not voluntary because he was advised
that the investigatory process could lead to criminal charges. The trial court rejected this claim,
noting that plaintiff testified that none of the chiefs ever said anything to him about criminal
sanctions. The only evidence that could possibly support plaintiff’s position is his own testimony
regarding the conversation he had with Carpenter prior to the January 10 meeting. Specifically,
Carpenter stated he was worried about the possibility of criminal sanctions and that the District
had retained counsel and determined that this was a possibility. However, Carpenter testified that
he had no recollection of telling plaintiff he could be led out in handcuffs. He further stated that
no one told plaintiff he would be charged with a crime. Further, Carpenter did not recall discussing
criminal sanctions with the chiefs prior to the January 10 meeting.
¶ 23 The trial court then noted that inadmissible hearsay may not be admitted to support or
oppose a motion for summary judgment. People ex rel. Madigan v. Kole, 2012 IL App (2d)
110245, ¶ 47. The only evidence that would support an inference that Veseling acted in a manner
to coerce plaintiff to resign rather than face criminal charges is plaintiff’s testimony that Carpenter
told him that the chiefs said something about criminal sanctions. The trial court ruled that this was
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inadmissible hearsay. Accordingly, plaintiff had offered no competent evidence that Veseling or
any of the chiefs had threatened plaintiff with criminal sanctions if he did not resign.
¶ 24 The trial court then considered plaintiff’s argument that the fact that he was forced to make
an immediate decision about resignation was coercive. The trial court noted that Carpenter told
plaintiff he could “buy him some time,” but plaintiff chose not to avail himself of this offer. Thus,
the trial court concluded, plaintiff’s failure to seek additional time belies plaintiff’s claim.
¶ 25 The trial court then addressed whether claimant’s post-deprivation remedies were
inadequate to vindicate his due process rights. It ultimately found that plaintiff’s failure to seek
such a remedy foreclosed his due process claim. As we, like the trial court, conclude that there
was no pre-deprivation violation of plaintiff’s due process rights, we need not consider the
adequacy of his post-deprivation remedies.
¶ 26 The trial court also found that Veseling was entitled to qualified immunity. Assuming,
arguendo, the pre-deprivation process afforded plaintiff was inadequate, the court concluded that
Veseling did not violate a clearly established right belonging to plaintiff. It stated, “Plaintiff fails
to identify any authority holding that the specifically alleged procedural violations of the Firemen’s
Disciplinary Act amounted to a constitutionally protected due process violation, or that even if it
was, that it was sufficiently clear to Chief Veseling that his conduct violated Plaintiff’s due process
rights at the time of the challenged conduct.”
¶ 27 Accordingly, the trial court granted summary judgment in favor of defendants. This appeal
followed.
¶ 28 III. ANALYSIS
¶ 29 On appeal, plaintiff advances three main arguments. First, he contends that the process
afforded him prior to his resignation was an affront to due process. The key issue here is whether
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plaintiff’s resignation was coerced, for if plaintiff voluntarily resigned, he cannot colorably assert
a due process violation. Although plaintiff cites some cases that involved constructive discharges,
plaintiff clarified at oral argument that he is advancing a coerced-resignation theory in this case.
Second, plaintiff contends that post-deprivation remedies were not adequate to cure the pre-
deprivation denial of his due process rights. As we determine that no pre-deprivation violation
occurred, we need not address this issue further. Third, plaintiff argues that the trial court erred in
determining that Veseling was entitled to qualified immunity. However, as plaintiff failed to
establish that he suffered from a denial of due process, this argument is moot as well.
¶ 30 Before proceeding further, we reject defendant’s assertion that plaintiff’s due process claim
was not raised before the trial court and is waived. See Jacobson v. Gimbel, 2013 IL App (2d)
120478, ¶ 34. We note that in his complaint, plaintiff alleged that he had a property interest in his
continuing employment and that he was entitled to a hearing “both before and after the termination
of his employment.” He also alleged that his resignation resulted from duress. As this issue was
adequately addressed below, we find that it is not forfeited.
¶ 31 As this appeal comes to us following a grant of summary judgment, review is de novo.
Seymour v. Collins, 2015 IL 118432, ¶ 49. A motion for summary judgment should not be granted
unless there are no genuine issues of material fact and the movant’s right to judgment as a matter
of law is clear and free from doubt. Id. The record must be construed strictly against that movant
and liberally in favor of the opponent of the motion. Id. If reasonable people could draw different,
relevant inferences from the record, a grant of summary judgment is not appropriate. Id. We now
turn to plaintiff’s arguments.
¶ 32 A. PRE-DEPRIVATION DUE PROCESS
¶ 33 Plaintiff first contends that he was denied due process prior to the point at which he
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resigned from his position. It is undisputed that plaintiff has a property interest in continued
employment. See Cleveland Board of Education v. Loudermill, 470 U.S. 532, 538-39 (1985).
Once that interest is conferred upon an employee, it may only be terminated in accordance with
due process. Id. at 541. Thus, before such an employee is terminated, he or she is entitled to (1)
notice of the proposed basis for termination, (2) hear the evidence the employer relies upon, and
(3) a chance to be heard. Id. at 546. Plaintiff asserts that he was given neither notice of the charges
against him nor an opportunity to respond. Defendant counters that plaintiff voluntarily resigned.
A public employee who resigns voluntarily is not entitled to due process relative to the cessation
of his or her employment. Palka v. Shelton, 623 F. 3d 447, 453 (7th Cir. 2010). Plaintiff responds
that his resignation was not voluntary. As a preliminary matter, we must assess whether plaintiff’s
resignation was voluntary.
¶ 34 Generally speaking, there are two types of involuntary resignations—coerced resignation
and constructive discharge: “Constructive discharge occurs when an employer makes employment
so unbearable that an employee resigns; coerced resignation is characterized by the presence of a
Hobson’s choice in which the employee must resign or suffer severe consequences, such as facing
criminal charges.” Id. Here, plaintiff asserts the latter theory (he mentions constructive discharge
in his brief and cites cases that are based on that theory but never explains how defendants made
his continued employment unbearable). He asserts that he made the decision to resign under threat
of possible criminal charges and that he was not given adequate time to consider his options.
¶ 35 Regarding the threat of criminal charges, plaintiff agrees “that no one from [the District’s]
management team mentioned the threat of criminal charges.” However, he points out that he
testified that Carpenter told him that Carpenter “had met with the department and had been notified
that there is a potential of criminal charges and your being taken out in handcuffs.” The trial court
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found that this was hearsay and could not be relied on by plaintiff to defeat the summary judgment
motion. Plaintiff asserts that this statement was not being offered for the truth of the matter
asserted but for the effect it had on his state of mind. Statements offered for such a purpose are
not hearsay. People v. Hammonds, 409 Ill. App. 3d 838, 854 (2011); Ill. R. Evid. 803(3)(B) (eff.
April 26, 2012). If plaintiff’s testimony were offered to show that Carpenter threatened him with
criminal sanctions, the statement would be admissible if offered for the effect it had upon plaintiff
but not for the truth of whether plaintiff would be criminally liable. However, here, there is another
component to Carpenter’s statement that concerns the truth of the matter asserted, specifically, that
the threat could be attributed to the chiefs. The effect that this statement had on plaintiff does not
matter if it did not come from defendant. To attribute the threat to defendant, one must take as
true plaintiff’s statement that Carpenter’s had met with the District and been informed there was a
potential for criminal charges. Plaintiff suggests no basis for this component of this testimony to
avoid the hearsay rule. Thus, the trial court properly disregarded this testimony. Moreover,
Carpenter testified that he had not discussed criminal sanctions with the chiefs. Thus, for the
purpose of resolving this summary judgment motion, nothing in the record would allow the
statements about criminal sanctions to be attributed to defendant.
¶ 36 The mere fact that plaintiff had to choose between resigning and being subject to the
disciplinary process is insufficient to deem plaintiff’s resignation coerced. Palka addresses
precisely this situation:
“No doubt Palka was confronted with a difficult choice when the disciplinary
charges were lodged against him and the Merit Board hearing loomed. He could retire
with full benefits or appear before the Board and potentially be vindicated; the latter option,
however, obviously risked termination and loss of his benefits if the charges were
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substantiated. But this is not the kind of choice that makes an otherwise voluntary
resignation involuntary. The Merit Board provides adequate procedural protections to
Cook County employees facing disciplinary charges, and its formal procedures were
underway when Palka chose to resign. The Merit Board’s disciplinary process satisfies the
County’s procedural due-process obligations, and the County and its officials cannot be
held liable when an employee chooses not to avail himself of its protections. [Citation.]
That Palka decided to resign rather than risk an unfavorable Merit Board decision does not
make his resignation involuntary.” Palka, 623 F.3d at 453.
Plaintiff attempts to distinguish Palka by pointing out that disciplinary proceedings were already
under way in that case. While true, the salient point in Palka was that the choice between
resignation and discipline did not render resignation coerced. That the plaintiff in Palka received
some degree of process does not meaningfully distinguish the case. Plaintiff asserts that the
plaintiff in that case had already been presented with written charges; however, it is unclear to us
how that would have altered plaintiff’s decision here. Plaintiff asserts that the Palka plaintiff had
more time to consider his situation. However, plaintiff’s claim that he was given inadequate time
to consider his choice falls flat in light of Carpenter’s uncontradicted testimony that plaintiff did
not avail himself of Carpenter’s offer to obtain more time for him to make a decision. In short,
Palka is sufficiently similar to this case that its rationale applies here. See also Dusanek v. Hannon,
677 F.2d 538, 543 (7th Cir. 1982) (The Dusanek court held that “it is not a deprivation of due
process of law to be put to the option of defending oneself in a proper dismissal hearing or
voluntarily accepting a change in one’s job status.” Plaintiff attempts to distinguish Dusanek on
the basis that the plaintiff in that case had a sufficient “opportunity for deliberation.” Given that
plaintiff did not avail himself of Carpenter’s offer for more time, nothing in the record supports
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plaintiff’s assertion that he did not have adequate time to consider his options.).
¶ 37 Indeed, in Allen v. Board of Trustees of Community College District No. 508, 285 Ill. App.
3d 1031, 1034 (1996), the plaintiffs argued that their resignations were involuntary where the
defendant allegedly “made the deliberate misrepresentations that [the] plaintiffs violated criminal
laws” in an effort to “extort involuntary resignations.” The Allen court rejected this argument. It
first held, “Because [the] defendants had a prima facie basis to discharge [the] plaintiffs, their
resignations given to avoid dismissal cannot be considered to have been given under duress.” Id.
at 1035. Here, plaintiff’s failure to maintain a paramedic license constituted similar grounds.
Moreover, in Allen, the court noted that there was no evidence that the defendants “falsely held
beliefs that [the] plaintiffs might have committed crimes.” Id. at 1036. Similarly, a person could
conclude that plaintiff in this case could be subject to potential criminal prosecution for practicing
as a paramedic, to include dispersing medicine, without a license. Thus, assuming arguendo, the
chiefs did hold such a belief, it would not have been unfounded. The Allen court continued: “Even
if [the] defendants’ belief that federal crimes were committed was incorrect, we hold that as a
matter of law plaintiffs were not coerced into resigning but voluntarily resigned. Defendants had
an indisputable basis for bringing dismissal proceedings, and plaintiffs were given a choice
between resigning or contesting the charges.” Id. at 1036. This logic applies here. While it is true
that the plaintiffs in Allen received written charges prior to resigning (id. at 1037), that isolated
fact is insufficient to distinguish the persuasive force of Allen’s reasoning in light of its compelling
similarities with this case.
¶ 38 Plaintiff calls our attention to Paroczav v. Hodges, 219 F. Supp. 89 (1963), which he asserts
is “more consistent with the facts” of this case. In that case, the plaintiff was aware of the charges
against him for one day before his employer demanded he immediately resign or face disciplinary
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proceedings. Id. at 91. The court determined that the plaintiff’s resignation was involuntary
because he had been forced to make an immediate decision. Id. at 94. However, the plaintiff in
Paroczav “specifically requested and [was] denied” time to consider his decision. Id. Here,
plaintiff chose to proceed despite Carpenter telling him he could “buy him some time if he needed
to think about things.” Thus, the record indicates that plaintiff had an adequate opportunity to
consider his decision. Paroczav is distinguishable on this basis.
¶ 39 Plaintiff also points to Kodish v. Oakbrook Terrace Fire Protection District, 604 F. 3d 490
(7th Cir. 2010); however, that case is plainly inapposite. In Kodish, the plaintiff was given a choice
between resigning and being immediately terminated. Id. at 502. Here, plaintiff was offered the
choice between resigning and facing a disciplinary process. There is no indication in the record
that this procedure would not have satisfied due process concerns or, for that matter, that it would
have necessarily led to termination. Kodish is therefore distinguishable.
¶ 40 Similarly, plaintiff’s citation to Ciambriello v. County of Nassau, 292 F.3d 307, 322-23
(2nd Cir. 2002), is unavailing. In that case, the plaintiff was demoted in clear degradation of his
due process rights and he challenged the demotion in a court action rather than in accordance with
the terms of a collective bargaining agreement (CBA) under which the parties operated. Id. at 312.
The defendant argued that his failure to take advantage of the procedures available in the CBA
constituted a waiver of his due process rights. Id. at 323. The court rejected this claim, explaining
that the plaintiff’s due process rights and rights established by a CBA are not commensurate. Id.
Ciambrello is dissimilar to this case in that the plaintiff there did not voluntarily resign; in fact, he
did not resign at all. He simply elected to attempt to vindicate his due process rights in court rather
than through the CBA. Here, plaintiff elected to resign, abandoning both any rights he may have
had under a CBA as well as his due process rights. Thus, Ciambrello involved a different situation
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than the one that confronts us here.
¶ 41 In sum, plaintiff has not set forth sufficient facts to persuade us that his resignation was
involuntary. As such, he cannot now complain of a violation of his due process rights.
¶ 42 B. OTHER ISSUES
¶ 43 As we have determined plaintiff has failed to set forth evidence that his right to procedural
due process was violated prior to his resignation, we have no occasion to address his argument that
post-deprivation remedies were inadequate to protect his due process rights. Moreover, whether
Veseling would be entitled to qualified immunity is also moot.
¶ 44 IV. CONCLUSION
¶ 45 For the foregoing reasons, the judgment of the circuit court of Kendall County is affirmed.
¶ 46 Affirmed.
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