United States District Court, N.D. Illinois, Eastern Division
September 30, 2004.
CLIVE W. NEISH, Plaintiff,
CITY OF CHICAGO, BEA REYNA-HICKEY, individually and in her official capacity, and CATHERINE MURRAY, individually and in her official capacity, Defendants.
The opinion of the court was delivered by: ELAINE E. BUCKLO, District Judge
MEMORANDUM OPINION AND ORDER
Plaintiff Clive W. Neish, an African-American, was employed by
defendant City of Chicago ("City") in an administrative capacity
in the Department of Revenue, from February 1, 1991 until his
termination on March 1, 2002. While employed with the City, Mr.
Neish obtained his law degree and began practicing law part-time.
During the relevant time, defendant Bea Reyna-Hickey was Director
of the Department of Revenue and defendant Catherine Murray was a
Deputy Director of that department as well as Mr. Neish's
In October 2000, Mr. Neish began working directly for Ms.
Murray. At that time, Mr. Neish acknowledged that he had a
part-time legal practice. Mr. Neish was instructed by Ms. Murray
that he needed to complete a Dual Employment Form and that he
should be aware of potential ethical conflicts. In January 2001,
Ms. Murray suspected that Mr. Neish was engaged in his legal practice during
his working hours. After an investigation by the City's Inspector
General, the City terminated Mr. Neish's employment in March
2002, stating that he had violated numerous City policies by
engaging in secondary employment during working hours. Mr. Neish
requested and received a three-day hearing regarding his
termination, and in September 2002, the Personnel Board upheld
the City's decision.
Mr. Neish, in an amended complaint, alleges that the City
discriminated against him on the basis of his race by terminating
him, in violation of Title VII, 42 U.S.C. § 2000e et seq.
(Count I), and 42 U.S.C. § 1981 (Count II). Mr. Neish also claims
that defendants discriminated against him on the basis of his
race by failing to promote him, in violation of 42 U.S.C. § 1981
(Count III); that defendants violated his First Amendment right
of free association by holding an unpublished blanket prohibition
of secondary employment (Count IV); and that defendants violated
his Fourteenth Amendment due process rights by terminating him
for violating an unpublished rule regarding the use of vacation
and personal time (Count V). Defendants move for summary judgment
on all counts. I GRANT that motion.
Summary judgment is appropriate where the record and
affidavits, if any, show that there is no genuine issue of
material fact and that the moving party is entitled to judgment
as a matter of law. Lexington Ins. Co. v. Rugg & Knopp,
165 F.3d 1087, 1090 (7th Cir. 1999); Fed.R. Civ. P. 56(c). Normally, I must
construe all facts in the light most favorable to the non-moving
party and draw all reasonable and justifiable inferences in favor
of that party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
255 (1986). However, in this case Mr. Neish has failed to comply
with Local Rule 56.1, which requires him to file
a concise response to the movant's statement that
(A) a response to each numbered paragraph in the
moving party's statement, including, in the case of
any disagreement, specific references to the
affidavits, parts of the record, and other supporting
materials relied upon, and
(B) a statement, consisting of short numbered
paragraphs, of any additional facts that require the
denial of summary judgment, including references to
the affidavits, parts of the record, and other
supporting materials relied upon.
Local Rule 56.1(b). Mr. Neish does file a statement purporting to
be a response to defendants' Rule 56.1(a) filing, as well as his
own statement of facts requiring the denial of summary judgment.
However, neither statement makes any reference to the record,
simply setting forth bare assertions of his denials or factual
statements. Even if I treat his statement as a sworn affidavit
(which it is not, but for purposes of this motion I will assume
he would swear to the statements), most of his Rule 56.1 filing
either admit defendants' statements or are inadequate without
reference to documents or other support to controvert defendants'
Rule 56 supported statements. All of the statements in the
defendants' Rule 56.1(a) filing are therefore deemed admitted.
Local Rule 56.1(b)(3)(B). See, e.g., Brasic v. Heinemann's,
Inc., 121 F.3d 281, 283-84 (7th Cir. 1997); Midwest Imps., Ltd. v. Coval,
71 F.3d 1311, 1316-17 (7th Cir. 1995).
In Counts I and II, Mr. Neish claims that the City
discriminated against him on the basis of his race by terminating
him, in violation of Title VII, 42 U.S.C. § 2000e et seq. and
42 U.S.C. § 1981. In Count III, Mr. Neish claims that the City
also discriminated against him by denying him an unspecified
promotion, also in violation of 42 U.S.C. § 1981. To establish
discrimination under either statute, Mr. Neish must provide
evidence of discriminatory intent either through the direct
method, Trans World Airlines, Inc. v. Thurston, 469 U.S. 111
(1985), or through the indirect method presented in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973).*fn1 Mr. Neish
presents no direct evidence of discrimination, and must therefore
proceed under the McDonnell Douglas Framework.
Under the indirect method, Mr. Neish must show that (1) he is a
member of a protected class, (2) he was meeting the City's
legitimate business expectations, (3) he suffered an adverse
employment action, and (4) other similarly-situated employees,
not of the protected class, were treated more favorably. Ajayi
v. Aramark Bus. Serv., Inc., 336 F.3d 520, 531 (7th Cir.
2003). The City agrees that Mr. Neish meets the first and third
requirements: he is African-American and termination (Counts I and II) or
denial of a promotion (Count III) constitute an adverse
employment action. The City contends, however, that Mr. Neish
cannot meet the second or fourth requirements. I agree.
Mr. Neish argues that he was meeting the City's legitimate
business expectations. Mr. Neish admits that he was terminated
because of his violations of City policy, and offers only his own
testimony as evidence that he was in fact meeting the City's
expectations. His conclusory statements alone are insufficient to
create a material factual dispute. Rabinovitz v. Pena,
89 F.3d 482, 487 (7th Cir. 1996). Furthermore, Mr. Neish cannot
identify any similarly-situated employees who were more favorably
treated than he was. With respect to his termination, Mr. Neish
does identify John Sugrue, a white employee who also practiced
law part-time, whom he claims was more favorably treated.
However, Mr. Sugrue was investigated, just as Mr. Neish was, but
resigned before the investigation was completed (and before any
disciplinary action could be taken). Mr. Neish argues that the
investigation of Mr. Sugrue was delayed, but presents no evidence
to support his assertions. Mr. Neish's argument that the fact the
City allowed Mr. Sugrue to resign shows discrimination is also
With respect to his promotion claim, Mr. Neish identifies Tina
Brown, a white female employee who was promoted to the position
of Claims Manager on September 16, 2002 more than six months
after Mr. Neish's termination. Mr. Neish identifies no promotion he was
denied during his tenure with the City, and his argument that Ms.
Brown was constructively promoted long before September 2002 is
unsupported. I GRANT the defendants' motion for summary judgment
with respect to Counts I, II, and III.
In Count IV, Mr. Neish alleges that the defendants violated his
First Amendment right to freely associate by having an
unpublished blanket prohibition of secondary employment while on
vacation or other personal time. First, this allegation
misconstrues the City policy which Mr. Neish was terminated for
violating. The City policy which requires advance approval from
one's supervisor before engaging in secondary employment was in
fact published, and Mr. Neish admits receiving this policy in
1996. In addition, Mr. Neish was investigated and ultimately
terminated for engaging in his legal practice during his working
hours with the City. Second, to the extent Mr. Neish is claiming
that he was fired in retaliation for exercising his rights under
the First Amendment, he has failed to present evidence that any
such exercise related to a matter of public concern. Klug v.
Chicago Sch. Reform Bd. of Trustees, 197 F.3d 853, 857 (7th
Cir. 1999). Defendants' motion for summary judgment with respect
to Count IV is GRANTED.
Finally, in Count V, Mr. Neish alleges that the defendants have
violated his due process rights under the Fourteenth Amendment by
terminating him for violating an unpublished rule regarding the use of vacation and personal time. First, as noted above, the
policy regarding secondary employment was published. Second, a
due process claim must be based on a violation of a protected
property or liberty interest. Smith v. Town of Eaton,
910 F.2d 1469, 1471 (7th Cir. 1990), cert. denied, 499 U.S. 962
(1991). While it is unclear what property or liberty interest Mr.
Neish claims has been violated, his claim fails regardless. If
Mr. Neish is claiming that the relevant liberty interest is a
right to engage in secondary employment, his claim fails as the
liberty interest possessed by employees has never been expanded
to require employers to make allowances for secondary employment.
See, e.g., Silk v. City of Chicago, No. 95 C 143, 1997 WL
790598, at *14 (N.D. Ill. Dec. 17, 1997) (Coar, J.).
If, instead, Mr. Neish is relying on a property interest in his
employment with the City, his claim fails, even assuming he
possesses such an interest, because the City provided him with
the requisite process, both pre- and post-termination. Due
process requires that the employee with a property interest in
continued employment be given notice and an opportunity to be
heard before termination. Smith, 910 F.2d at 1472 (citing
Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 547
(1985)). In February 2002, the City provided Mr. Neish with a
statement of the charges against him, along with an explanation
of the evidence supporting those charges. Mr. Neish was given the
opportunity to respond in writing to those charges, and on February 25, 2002, Ms. Reyna-Hickey and
Catherine Jones, Director of Personnel for the Department of
Revenue, met with Mr. Neish to discuss both the City's statement
and Mr. Neish's response. Mr. Neish was terminated on March 1,
2002. Further, Mr. Neish availed himself of the opportunity to
challenge his termination in a hearing before the Personnel Board
of the City of Chicago. That hearing took place over the course
of three days: May 15, June 19, and July 2, 2002. Mr. Neish was
represented by counsel at that hearing, testified on his own
behalf, and was able to cross-examine the other witnesses. The
Personnel Board then affirmed Mr. Neish's termination. Defendants
have provided Mr. Neish with adequate notice and opportunity to
be heard to satisfy due process. Defendants' motion for summary
judgment with respect to Count V is GRANTED.