                           In the
 United States Court of Appeals
              For the Seventh Circuit
                        ____________

No. 04-2072
JERRY L. DEEN,
                                           Plaintiff-Appellant,
                              v.

TIMOTHY DAROSA, DAN KENT,
TERESA KETTLEKAMP, et al.
                                        Defendants-Appellees.
                        ____________
          Appeal from the United States District Court
              for the Central District of Illinois.
            No. 02 C 3125—Richard Mills, Judge.
                        ____________
     ARGUED JANUARY 13, 2005—DECIDED JULY 8, 2005
                    ____________




  Before ROVNER, EVANS, and SYKES, Circuit Judges.
   SYKES, Circuit Judge. Jerry Deen, a former officer of the
Illinois State Police (“ISP”), filed this action under 42
U.S.C. § 1983, asserting that ISP officials deprived him of
a constitutionally protected property interest without due
process of law when they refused to reinstate him from
medical leave status to active duty. The district court held
that Deen had suffered a deprivation of a protected property
interest but received all the process that was due to him
under Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532,
546 (1985).
2                                              No. 04-2072

  We affirm, but on different grounds. Applying Buttitta v.
Chicago, 9 F.3d 1198 (7th Cir. 1993), we conclude that Deen
did not have a constitutionally protected property interest
in reinstatement per se, but, rather, had a more limited
property interest in an opportunity to demonstrate his fit-
ness for return to active duty under an ISP policy directive
that governs officers’ reinstatement from medical leave.
That policy empowers the ISP’s Medical Board to determine
the fitness for return to active duty of employees placed on
medical duty status, and prescribes the procedures to be
followed by the board in making that determination. On the
undisputed facts, it is clear that Deen was afforded all the
process he was due under the policy directive, and the
defendants were entitled to summary judgment.


                     I. Background
  Once a sergeant in the ISP, Deen was relieved from active
duty in 1997 after officials discovered he had engaged in
improper communications with another state agency and
conduct unbecoming an officer. Deen continued to receive
his regular salary and benefits. Approximately six months
later, Deen submitted to a mandatory psychological evalu-
ation. Dr. Michael Campion examined Deen and determined
that he suffered from paranoid personality disorder and was
“emotionally incapable of performing the duties of a state
police officer.” Thus, in August 1997, Dean was placed on
medical leave and continued to receive his regular salary
and benefits. Deen’s medical leave expired in April 2000
and at that point the ISP placed him on “dock status,”
which meant that he continued to be a state police officer
but received no pay and accrued no benefits.
  On May 16, 2000, Deen wrote to ISP Director Sam Nolen
to request reinstatement to active duty. The basis for
Deen’s request was a four-sentence letter from Dr. Joseph
Bohlen, Deen’s personal physician, stating summarily that
No. 04-2072                                                3

Deen was “capable of working in law enforcement in any
capacity.” Deen included a copy of Dr. Bohlen’s letter with
his own. On May 18, 2000, the ISP removed Deen from dock
status and returned him to paid leave with benefits. On
June 15, 2000, the ISP once again ordered Deen to undergo
a psychological evaluation. Dr. Robert Marsh conducted this
evaluation, and he opined that Dr. Campion had probably
misdiagnosed Deen’s condition back in 1997. Rather than
being the result of a paranoid personality disorder, Deen’s
psychological problems were brought on by stress and
depression caused by a bitter divorce and family trouble.
Dr. Marsh also opined that Deen still had the potential to
develop recurring depression with pseudodelusional
features that might not respond well to treatment. He
advised the ISP that if Deen were to resume active duty,
the department would have to monitor his response to
stress and provide quick, extensive support services should
there be a recurrence of his psychological problems.
  In the fall of 2000, the ISP wrote to Deen and told him to
attend a meeting of the ISP’s Medical Review Board on
November 27, 2000. The board is the entity charged by the
ISP with assessing its employees’ fitness for duty; its five
voting members are among the named defendants in this
case (Nolen is the other defendant.) Under ISP regulations,
the board’s recommendations are either accepted or rejected
by the ISP Director. Deen asked to reschedule his appear-
ance before the board, and the board agreed, deferring his
appearance until January 9, 2001. However, when the
board convened on November 27 to discuss other matters,
two members recited unfavorable information about Deen,
principally the reluctance of some officers to work alongside
him because of his psychological problems.
  On January 9 Deen’s case was presented to the board.
The presentation included Dr. Campion’s 1997 evaluation
of Deen concluding that he was not fit for duty; Dr. Bohlen’s
letter supporting Deen’s request for reinstatement; and Dr.
4                                                No. 04-2072

Marsh’s evaluation of Deen concluding that Deen was fit for
duty but had the potential to develop a recurring depression
with pseudodelusional features. After the case was pre-
sented, Deen entered the room and told the board that Drs.
Marsh and Bohlen both said he is fit for duty and that he is
ready to get back to work. According to the minutes of the
meeting, board members said nothing to Deen, and he left
the room. Deputy Director Dan Kent, a board member, then
told the board that other police officers were concerned
about Deen’s judgment and were afraid to work alongside
him. Kent also said that he considered the accommodations
required under Dr. Marsh’s assessment to be unreasonable.
The board recommended that Deen not be reinstated to
active duty and that he remain on sick leave.
  On February 1, 2001, Director Nolen accepted the board’s
recommendation, denying Deen’s request to return to active
employment. Deen wrote to Nolen asking him to reconsider;
Nolen declined to reverse his decision. By June 2001 Deen
had exhausted all of his accumulated sick leave. He re-
ceived unemployment benefits until sometime in the spring
of 2002 and then retired. Deen then sued the defendants
under 42 U.S.C. § 1983, alleging that (1) he had a constitu-
tionally protected property interest in his ISP job under the
State Police Act, 20 ILCS §§ 2610/1 et seq.; (2) the defen-
dants’ denial of reinstatement was a pretense and that he
was “effectively terminated” on the basis of their belief that
he had engaged in misconduct; and (3) the procedure by
which he was terminated failed to provide adequate due
process.
  The district court granted summary judgment to the
defendants, concluding that although Deen had been “ter-
minated” in 2001 and deprived of his property interest in
continued employment, his unfitness for duty was a valid
basis for termination and he was afforded adequate due
process both prior to and after the termination under the
standards enunciated in Loudermill, 470 U.S. at 546. In the
No. 04-2072                                                  5

alternative, the court held that the defendants were entitled
to qualified immunity insofar as Deen had not shown he
had a clearly established right to anything beyond the
protections afforded to him under Loudermill. Deen ap-
pealed.


                      II. Discussion
  Under 20 ILCS § 2610/14, ISP officers may not be removed,
demoted, or suspended except for cause, and only following
the examination and hearing procedure set forth in the
statute. Deen was not removed, demoted, or suspended from
the ISP; he was put on paid administrative leave and then
on paid medical leave. Nonetheless, Deen asserts that the
1997 action placing him on leave status deprived him of a
constitutionally protected property interest without due
process. That is wrong, as the district court properly held,
because Deen’s salary and benefits remained at their pre-
vious levels while he remained on administrative leave; a
job action that causes no pecuniary loss whatsoever does
not implicate the Constitution. Townsend v. Valls, 256 F.3d
661, 676 (7th Cir. 2001); Swick v. Chicago, 11 F.3d 85, 86
(7th Cir. 1993); see also Luellen v. East Chicago, 350 F.3d
604, 613-14 (7th Cir. 2003) (loss of eligibility for “on-call
pay” not a cognizable property right under the Due Process
Clause).
  The 2001 job action is somewhat different. In that year
the defendants refused to reinstate Deen to active duty,
effectively keeping him on paid medical leave until his pay
and benefits eventually ran out. The district court treated
the refusal to reinstate as a “termination” which deprived
Deen of a protected property interest, relying upon what it
regarded as the defendants’ concession of the issue. How-
ever, a court is not bound to accept a concession when the
point at issue is a question of law. “ ‘While . . . concessions
are often useful to a court, they do not, at least as to ques-
6                                                No. 04-2072

tions of law that are likely to affect a number of cases in the
circuit beyond the one in which the concessions are made,
relieve this Court of the duty to make its own resolution of
such issues.’ ” United States v. Westmoreland, 240 F.3d 618,
633 (7th Cir. 2001) (quoting Strauss v. United States, 516
F.2d 980, 982 (7th Cir. 1975)); see also Saviano v. Comm’r
of Internal Revenue, 765 F.2d 643, 645 (7th Cir. 1985)
(parties may not stipulate to legal conclusions to be reached
by the court). The question whether a particular job action
against a public employee implicates a constitutionally
protected property interest is a question of law; “[p]roperty
interests are not created by the Constitution, ‘they are
created and their dimensions are defined by existing rules
or understandings that stem from an independent source
such as state law.’ ” Loudermill, 470 U.S. at 538 (quoting
Bd. of Regents v. Roth, 408 U.S. 564, 577 (1972)). In the
context of public employment, a “unilateral expectation” on
the part of the public employee “will not suffice” to create a
protected property interest; “a property interest is not
legally cognizable unless a person has a ‘legitimate claim of
entitlement’ to the benefit.” Buttitta, 9 F.3d at 1202 (quoting
Roth, 408 U.S. at 577).
  Deen did not have a legitimate claim of entitlement to
reinstatement to active duty service from medical duty
status; the defendants’ refusal to reinstate him was not the
equivalent of termination. It did not lead to termination or
even in the short term to a diminution in pay or benefits.
Instead, it led to his remaining on medical leave, a status
that accorded him full pay and benefits. True, Deen’s medi-
cal leave was self-limiting and, absent a later reinstate-
ment, Deen was eventually going to exhaust his benefits.
But the conclusion of Deen’s employment was not inevita-
ble; and in any event, the eventual exhaustion of medical
leave pay and benefits does not mean that Deen had a
legitimate claim of entitlement to reinstatement to active
duty.
No. 04-2072                                                 7

  Deen argues that the defendants’ actions were largely a
pretense, and that he was terminated not for medical rea-
sons but because he was accused of misconduct. If this were
a disciplinary termination, Deen would be owed the process
set forth in 20 ILCS § 2610/14, which prescribes the rights
of officers accused of misconduct and sets forth the proce-
dures to be followed if the ISP seeks the officer’s removal,
demotion, or suspension. We recognize that the distinction
between disciplinary and medical proceedings in the public
employment context are susceptible to manipulation by a
public employer who, for whatever reason, prefers not to
proceed against an employee in a disciplinary setting. But
Deen has not presented any evidence that the ISP’s ap-
proach to his reinstatement from medical leave was a
pretext for removing him because of misconduct.
   Our decision in Buttitta is directly on point and controls
this case. Buttitta held that the Chicago Police Department’s
refusal to reinstate one of its officers to active duty due to
a liver condition did not deprive that officer of a constitu-
tionally protected property interest. Buttitta, 9 F.3d at
1203. Buttitta’s property interest in returning to work from
medical duty status was conferred by a provision in the
Illinois Pension Code setting forth the procedure to be fol-
lowed in determining whether an officer receiving disability
benefits should be returned to active duty. Id. Rather than
conferring a full-fledged, constitutionally protected property
interest in reinstatement to active duty, we held that the
statute “creates in police officers a property interest in
being returned to the department for an opportunity to
demonstrate their fitness for active duty.” Id. at 1204. The
interest in an opportunity to demonstrate fitness is sub-
stantially less weighty than an interest in reinstatement
itself. Police officers seeking reinstatement may not be
deprived of the opportunity to demonstrate their fitness, we
concluded, but because the department had fulfilled all its
obligations to Buttitta under the statute, we held that he
had received all the process he was due. Id. at 1205.
8                                                No. 04-2072

  In Deen’s case the ISP’s obligations to employees on
medical status who seek reinstatement are set forth in a
policy directive titled “Medical Duty” and denominated
“PER-038.” It states that “[t]he ISP may assign employees
to medical duty when there is sufficient evidence of their
inability to perform at full duty and provide a mechanism
for determining when the employee should return to full
duty status.” It then lays out the parameters of medical
duty status and the composition, duties, and procedures of
the Medical Review Board, the entity charged with moving
employees into and out of medical duty status. As relevant
to Deen’s case, the directive provides that an employee may
appear before the board to present pertinent facts, testi-
mony, records, and reports regarding his case. It states that
the board may request additional documentation from
personal physicians, specialists, and the like. All recommen-
dations made by the board are forwarded to the ISP
Director for approval. An employee who disagrees with the
decision may submit a written appeal to the Director within
ten days of receipt of the decision.
  From the record before us it is clear that Deen received
the process due to him under the ISP’s policy directive.
Deen received notice of the November 27 meeting of the
board, which was rescheduled to January 9, 2001 at his re-
quest. He appeared before the board and had the opportu-
nity to provide it with information and documents. The
board had before it the medical reports from the doctors
who examined Deen. As required by the policy directive, the
board forwarded its recommendation to Nolen, the ISP
Director, who made the ultimate decision not to reinstate
Deen. Deen appealed to Nolen for reconsideration of the
decision, as was his prerogative. Each step of the process
that resulted in the denial of Deen’s reinstatement request
conformed to the dictates of PER-038.
  Because under Buttitta Deen did not have a constitution-
ally protected property interest in reinstatement itself, but,
No. 04-2072                                                9

rather, had a more limited interest in an opportunity to
establish his fitness for return to active duty, he was not
owed the full complement of due process protections set
forth in Loudermill. This conclusion makes it unnecessary
for us to address Deen’s challenge to the district court’s
conclusion that the ISP’s procedures provided sufficient pre-
termination notice and opportunity to be heard under
Loudermill. There is also no need to consider the
defendants’ claims of qualified immunity. The judgment of
the district court is AFFIRMED.

A true Copy:
      Teste:

                        ________________________________
                        Clerk of the United States Court of
                          Appeals for the Seventh Circuit




                    USCA-02-C-0072—7-8-05
