COLE v. MILWAUKEE AREA TECHNICAL COLLEGE DISTRICT (February 24, 2011)
Milwaukee Area Technical College employed Darnell Cole as its president. His employment agreement, which ran through June of 2011, contained two termination provisions. Under one provision, the College could terminate his employment without cause by giving him 90 days notice and paying him all of this salary and vacation that he would have earned through the end of his contract term. Under another provision, the College could terminate his employment at the end of any month for performance or conduct "considered grounds for dismissal" by the College. In February of 2009, Cole was charged with driving under the influence of alcohol. In a February board meeting, the College decided to terminate Cole's employment effective February 28. Cole brought suit pursuant to § 1983 (the College is a creature of Wisconsin law), alleging a due process violation. Magistrate Judge Gorence (E.D. Wis.) granted the defendants' motion to dismiss. Cole appeals.
In their opinion, Circuit Judges Flaum and Wood and District Judge McCuskey affirmed. The threshold question in any due process case, stated the Court, relates to the existence of a property interest. If Cole has a property interest, it must come from his employment agreement and state law. Under Wisconsin law, due process attaches only when the employment agreement requires a "cause" for termination. The Court concluded that Cole’s employment agreement fell somewhere between an at-will employment agreement and a "cause" employment agreement. Although the College needed some reason to terminate Cole's employment without notice and without severance, their discretion to do so was not meaningfully restricted. The Court therefore concluded that Cole did not have a constitutionally protected property interest.