Former College of DuPage President Robert L. Breuder can proceed with his wrongful termination and defamation complaint, after a federal appeals court said potentially questionable language within his contract – including a provision requiring a supermajority among the college’s trustees to fire him - did not mean the college’s board was justified in firing him without giving him a hearing to dispute accusations of mismanagement leveled against him.
In an opinion issued April 17, a three-judge panel of the U.S. Seventh Circuit Court of Appeals in Chicago affirmed the ruling of U.S. District Judge Andrea R. Wood, rejecting the attempt by members of the College of DuPage’s board of trustees to dismiss Breuder’s lawsuit.
Seventh Circuit Judge Frank Easterbrook authored the opinion, with judges Ilana D. Rovner and David F. Hamilton concurring.
The trustees of Community College District 502 fired Breuder in October 2015 following the election of trustees who campaigned on a pledge to fire Breuder. Breuder’s complaint singled out trustees Kathy Hamilton, Deanne Mazzochi, Frank Napolitano and Charles Bernstein, suing them both as officials of the college and as individuals.
The lawsuit, which alleged defamation, conspiracy, breach of contract and violation of Breuder’s due process rights, among others, came just one day after the COD board formally voted 4-1 to terminate Breuder and void a controversial $763,000 separation agreement he had reached with the college when the board of trustees was under different leadership.
Breuder started with the college in 2009, and first came under public scrutiny in mid-2014 when emails he sent to the board were made public, revealing his plan to invite former Gov. Pat Quinn to speak at the college’s commencement ceremony, purportedly in exchange for $20 million in funds for an on campus “teaching and learning center.” Controversy mounted, reaching a head in early 2015, when Breuder agreed to part ways with the college in March 2016 in exchange for a $763,000 severance package.
In arguing for dismissal of Breuder’s suit in retaliation for the firing, the college said Breuder’s contract was invalid because it extended beyond the terms of the elected trustees who approved the deal. Easterbrook, in writing the opinion, said the college overlooked the Seventh Circuit’s similar 1975 decision in Hostrop v. Board of Junior College District 515, in which a college president was found to be entitled to an employment contract that extended beyond the date of the next board election.
The trustees also objected to two other clauses in Breuder’s contract, including language guaranteeing he could only be fired by a vote of five members of the seven member COD board of trustees, stating trustees are allowed to act by majority vote, and a different clause allowing the board or its chairman to extend Brueder’s deal for a year without a public meeting.
Wood had found both clauses valid, and Easterbrook declined to gainsay that finding, noting the Seventh Circuit didn’t need to determine if her conclusion was correct “because there is a difference between the validity of a clause and the validity of the contract.” The disputed clauses can be dealt with on appeal from the final decision, the panel said, if they turn out to affect that judgment.
The board further maintained uncertainty around Breuder’s contract guards them from accusations of violating clearly established rules. The panel disagreed.
“When discharging Breuder without giving him an opportunity for a hearing, the board issued a statement declaring that he had committed misconduct,” Easterbrook wrote, adding the board violated his constitutional right by refusing to grant him a pre- or post-termination hearing. The board also was obligated to grant a hearing due to Breuder’s legitimate claim of entitlement to serve the remainder of his contract.
“Whether the contract was valid was subject to legitimate debate, and a hearing would have allowed Breuder to articulate his position and insist that the contract be enforced,” Easterbrook wrote. “The members who refused even to listen to him violated his clearly established rights.”
Breuder is represented in the action by attorneys Martin Dolan, with the Dolan Law Offices P.C.; James R. Figliulo and Melissa N. Eubanks, of Figliulo & Silverman; and Vincent C. Mancini, of Fornaro Law, each of Chicago; and Patrick L. Provenzale, Terry A. Ekl and Tracy L. Stanker, of Ekl, Williams & Provenzale LLC, of Lisle.
The COD trustees are represented collectively by Andrew C. Porter, Carrie E. Delange and Kaitlin G. Klamann, of the firm of Drinker Biddle & Reath LLP, of Chicago; and individually by attorneys Jody A. Boquist and Lavanga V. Wijekoon , of Littler Mendelson, P.C., and Frank J. Favia Jr. and Jillian R. Dent, of Sidley Austin LLP, each of Chicago.