Allen, James T. v. Martin, Timothy W. ( 2006 )


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  •                             In the
    United States Court of Appeals
    For the Seventh Circuit
    ____________
    No. 05-2026
    JAMES T. ALLEN,
    Plaintiff-Appellant,
    v.
    TIMOTHY W. MARTIN, BRIAN PIERSMA
    AND ROBERT MILLETTE,
    Defendants-Appellees.
    ____________
    Appeal from the United States District Court
    for the Central District of Illinois.
    No. 04 C 3089—Jeanne E. Scott, Judge.
    ____________
    ARGUED FEBRUARY 21, 2006—DECIDED AUGUST 22, 2006
    ____________
    Before BAUER, KANNE, and ROVNER, Circuit Judges.
    BAUER, Circuit Judge. James T. Allen was fired from his
    position as the Bureau Chief of Accounting and Auditing for
    the Illinois Department of Transportation (IDOT) in April
    2003; less than three months after Rod Blagojevich, a
    Democrat, replaced George Ryan, a Republican, as Gover-
    nor of the State of Illinois. Allen brought suit against the
    defendants, employees of the IDOT, under 
    42 U.S.C. § 1983
    ,
    alleging violations of his First Amendment right to political
    affiliation and his Fourteenth Amendment right to due
    process. The defendants filed a motion for judgment on the
    pleadings, FED. R. CIV. P. 12(c). Treating the motion as one
    for summary judgment, FED. R. CIV. P. 56(c), the district
    2                                                 No. 05-2026
    court first granted the parties time to file additional
    materials, and then granted judgment for the defendants
    after finding that political affiliation was an appropriate
    hiring criterion for the position. We affirm.
    I. Background
    The IDOT is responsible for the state’s vast transporta-
    tion system. In tending to this responsibility, the Depart-
    ment expends both state and federal funds on roads,
    airports, railways, and mass transportation. The proposed
    budget for fiscal year 2006 was $7.8 billion.1 To manage
    these funds, the IDOT has an Office of Finance and Admin-
    istration that is responsible for “developing and administer-
    ing the Department’s . . . budget, . . . [and] providing
    accounting and auditing functions to ensure sound fiscal
    management. . . .” 2 Ill. Adm. Code 1225.230.
    The Office is divided into seven Bureaus, one of which
    is Accounting and Auditing. 1225.230(a). Accounting and
    Auditing is responsible for providing general accounting
    and audit services, including “general cost accounting;
    recommendations on internal financial policies, procedures
    and control; management of Federal billing; and inter-
    nal/external auditing.” 
    Id.
     It was this Bureau over which
    Allen served as Chief.
    According to the official IDOT position description, the
    Bureau Chief of Accounting and Auditing, titled Technical
    Manager VIII, is accountable for “planning, organizing and
    directing accounting activities department-wide, establish-
    1
    Figure presented in IDOT press release, February 16, 2005.
    “Gov. Blagojevich IDOT budget proposal maximizes efficiency and
    improves accountability,” http://www.dot.state.il.us/press/
    r021605.html.
    No. 05-2026                                                3
    ing fiscal control procedures, administering all business
    services and keeping management informed of potential
    problems in expenditures or fiscal agreements.” Defendants’
    Br. at A2. The Bureau Chief reports to the Director of
    Finance and Administration and supervises five employees
    directly and ninety-five employees indirectly. The five
    employees reporting directly to the position are the “Section
    Chiefs of Accounts and Finance, Project Control, Audits,
    Business Services and a Secretary.” 
    Id.
    The job description explains that “[i]n light of the magni-
    tude and complexities of transportation programs, this
    position is accountable for developing and maintaining all
    records, procedures, and systems to support the Depart-
    ment’s fiscal accounting activities.” 
    Id.
     The major chal-
    lenges for the job include the need to “reconcile financial
    record problems between the Department and the State
    Comptroller; . . . review proposed third party agreements
    and recommend changes as necessary in agreement content;
    and . . . [respond] to inquiries from legislators on funds
    expended in their legislative districts through coordination
    with the Bureau of Legislation.” 
    Id.
    To accomplish these goals, the Bureau Chief manages
    four primary subordinates. The Chief of Accounts and
    Finance, with 40 full-time employees, is responsible for
    maintaining the ledgers, accounts receivable and payable,
    and preparing financial statements. 
    Id. at 3
    . The Chief of
    Audits, with 23 full-time employees, is responsible for
    formulating overall audit policies and procedures, evaluat-
    ing IDOT internal controls and procedures, determining the
    reliability of accounting and other IDOT data, conducting
    special examinations, and coordinating “reciprocal or
    courtesy audit arrangements with other states and Fed-
    eral Highway Administration officials.” 
    Id.
     The Chief of
    Project Control, with 12 full-time employees, tracks the
    status of all federally aided programs. 
    Id.
     The Chief of
    Business Services, with 16 full-time employees, oversees
    4                                               No. 05-2026
    central purchasing, equipment inventory, real estate leases,
    capital improvements, and budget and accounting for the
    Bureau. 
    Id.
    The job description further details that the Bureau Chief
    is responsible for developing and controlling the Bureau’s
    operating budget and recommending the budget to the
    Director for final approval. These decisions are constrained
    by “[s]tate and [f]ederal regulations, Departmental rules
    and regulations, and the general goals and objectives
    established by the Secretary.” 
    Id.
     But not all of the Bureau
    Chief’s responsibilities are internal. The Chief interacts
    with other Bureaus and agencies within the IDOT and
    has contacts outside of the Department. 
    Id.
     at A4. In-
    cluded in the latter group are the “Auditor General and
    Legislative Audit Commission on Departmental audits
    [and] other State Highway or Transportation Departments
    on transportation related matters, particularly the fiscal or
    financial aspects.” 
    Id.
    Lastly, the job description reemphasizes the position’s ten
    principal accountabilities. The three most relevant points
    for our review today being the need to: “[d]evelop and
    maintain a financial management reporting system;”
    “[d]evelop and maintain fiscal accounting and reporting
    procedures;” and “[p]erform procedural audits and sur-
    veys on both an internal and external basis.” 
    Id.
    Allen was hired into this position on December 13, 2002.
    On January 13, 2003, Rod Blagojevich, a Democrat, re-
    placed the outgoing Republican governor, George Ryan.
    Allen was then fired on April 2, 2003.
    On April 13, 2004, Allen filed his initial complaint
    alleging the violation of his First and Fourteenth Amend-
    ment rights by Martin and the IDOT. His amended com-
    plaint, naming the current defendants, was filed on August
    20. On September 3, the defendants filed their Motion for
    Judgment on the Pleadings, FED. R. CIV. P. 12(c). This
    No. 05-2026                                                5
    filing, however, relied on evidence not contained in the
    pleadings, and on October 26, the district court converted it
    into one for summary judgment.
    The court initially gave the parties until November 16,
    2004, to file any additional materials made necessary by the
    conversion of the motion to summary judgment.
    On November 10, Allen filed a Motion for Extension of Time
    to File, praying for a new deadline of November 30. The
    district court granted this motion. On November 30,
    however, Allen filed another motion for additional time.
    Attached to this filing was his affidavit describing his
    responsibilities as Bureau Chief of Accounting and Audit-
    ing.
    Allen’s affidavit describing his duties as actually per-
    formed primarily tracks his job description. He claims not
    to have directly reported to the Director of the Office of
    Finance and Administration; but instead to the two Deputy
    Directors. Otherwise, he acknowledged responsibility over
    the areas of accounts and finance, audits, business services,
    and project control. In accounts and finance, he stated that
    he “basically paid bills and then input information.”
    Plaintiff’s Br. at App. 64. For audits, Allen noted that he
    was responsible for the internal and external audit of
    employees and contractors, but maintained that he did not
    set guidelines or accepted procedures. Business services
    primarily dealt with purchases, and his actions were
    governed by state and federal regulations. Regarding
    project control, Allen noted that his primary job was to
    monitor both work flow and payments for Federal highway
    projects. 
    Id. at 64
    . Allen concluded by noting that there
    were three former IDOT employees, whose affidavits he did
    not have, who would support the matters set forth in his
    affidavit.
    The district court denied Allen’s second motion for
    additional time. On March 15, 2005, Judge Scott entered
    6                                                No. 05-2026
    summary judgment in favor of the defendants on all issues.
    Allen now appeals pursuant to 
    28 U.S.C. § 1291
    . He claims
    that the district court erred in granting summary judgment
    (1) without allowing him greater time to collect evidence, (2)
    on the basis of his job description and submitted affidavits,
    and (3) on his due process claim. We address these claims
    in sequence.
    II. Analysis
    A. Additional Time for Discovery
    Allen’s first point is that the district court erred in
    granting defendants’ motion for summary judgment without
    allowing him additional time for discovery. The district
    court’s decision on this matter was governed by FED. R. CIV.
    P. 56(f), which states:
    Should it appear from the affidavits of a party opposing
    the motion that the party cannot for reasons stated
    present by affidavit facts essential to justify the party’s
    opposition, the court may refuse the application for
    judgment or may order a continuance to permit affida-
    vits to be obtained or depositions to be taken or discov-
    ery to be had or may make such other order as is just.
    We review the district court’s decision in applying Rule
    56(f) for abuse of discretion. Kalis v. Colgate-Palmolive Co.,
    
    231 F.3d 1049
    , 1056 (7th Cir. 2000); see also Davis v. G.N.
    Mortgage Corp., 
    396 F.3d 869
    , 884-85 (7th Cir. 2005).
    Allen argues now, on appeal, that had he been given
    additional time to collect the affidavits of three of his
    former coworkers, they would have yielded facts essential
    to his claim. Additionally, he makes much of the fact that
    he consistently tried to obtain the affidavits, and was
    unable to contact them through no fault of his own. Dili-
    gence in obtaining the evidence, however, is not the issue
    under Rule 56(f); we are concerned with whether the facts
    No. 05-2026                                                 7
    sought are “essential to justify the party’s opposition.” FED.
    R. CIV. P. 56(f). In his filings, Allen implicitly told the
    district court that there was nothing essential about the
    information he sought. In the memorandum filed in support
    of his Motion to Continue, he wrote that he “[believed] his
    own Affidavit (Exhibit A) sufficiently sets forth facts to
    defeat the Motion for Summary Judgment . . . [but that the
    other affidavits] could shed light on the subject as well. . .
    .” Motion for Continuance of Ruling, ¶ 4, Nov. 30, 2004.
    Because of this admission that the affidavits would provide
    only supplementary evidence, the district court found that
    Allen’s motion did not meet the Rule 56(f) showing for a
    continuance. This decision was well within Judge Scott’s
    reasonable exercise of discretion.
    B. Political Affiliation As a Criterion for Employ-
    ment
    Allen argues next that the district court erred in granting
    the defendants’ motion for summary judgment as to
    whether political affiliation was an appropriate criterion for
    his employment. We review this ruling de novo. Semien v.
    Life Ins. Co. of North America, 
    436 F.3d 805
    , 809 (7th Cir.
    2006). Summary judgment is appropriate if the moving
    party demonstrates “there is no genuine issue as to any
    material fact and that the moving party is entitled to
    judgment as a matter of law.” FED. R. CIV. P. 56(c). When
    determining whether a genuine issue of material fact exists,
    this Court considers evidence in the light most favorable to
    the nonmoving party. See Matsushita Elec. Ind. Co. v.
    Zenith Radio Corp., 
    475 U.S. 574
    , 587 (1986). On appeal,
    there is no disagreement between the parties as to whether
    Allen was fired for political purposes. The only issue is
    whether his political affiliation was an appropriate criterion
    for his former position as the IDOT Bureau Chief of Ac-
    counting and Auditing.
    8                                                   No. 05-2026
    A public employee may be dismissed on the basis of their
    political affiliation where the “nature of his job makes
    political loyalty a valid qualification” for the effective
    performance of their position. Riley v. Blagojevich, 
    425 F.3d 357
    , 359 (7th Cir. 2005); Kiddy-Brown v. Blagojevich, 
    408 F.3d 346
    , 355 (7th Cir. 2005). We have previously held that
    such political loyalty may be demanded where the em-
    ployee’s position involves “the making of policy and thus the
    exercise of political judgment.” Riley, 
    425 F.3d at
    359 (citing
    Elrod v. Burns, 
    427 U.S. 347
    , 367-68 (1976); Branti v.
    Finkel, 
    445 U.S. 507
    , 518 (1980)). If a position “ ‘authorizes,
    either directly or indirectly, meaningful input into govern-
    ment decisionmaking on issues where there is room for
    principled disagreement on goals or their implementation,”
    it will be found to involve policymaking. Kiddy-Brown, 
    408 F.3d at 355
     (quoting Nekolny v. Painter, 
    653 F.2d 1164
    ,
    1170 (7th Cir. 1981). Additionally informative is the degree
    of discretion and responsibility exercised in the position. See
    Riley, 
    425 F.3d at 363
    ; Selch v. Letts, 
    5 F.3d 1040
    , 1043 (7th
    Cir. 1993). Before we may address the constitutionality of
    the defendants’ demand for political loyalty for Allen’s
    position, however, we must first determine what evidence
    to consider.
    In evaluating whether the Bureau Chief job was one
    for which political affiliation was an appropriate criterion,
    we focus on the inherent powers of the office as presented
    in the official job description. Riley, 
    425 F.3d at
    360-61
    (citing Meeks v. Grimes, 
    779 F.2d 417
    , 419 n.1 (7th Cir.
    1985)).2 We only look past the job description where the
    2
    Because defendants introduced the official job description into
    evidence at trial, and the district court considered it as such in
    granting summary judgment, this case follows Riley, 
    425 F.3d 357
    (affirming summary judgment, in part, upon consideration
    of job description), and not Kiddy-Brown, 
    408 F.3d 346
     (remand-
    (continued...)
    No. 05-2026                                                    9
    plaintiff demonstrates some systematic unreliability. Id.;
    Pierson v. Blagojevich, 
    437 F.3d 587
    , 588 (7th Cir. 2006).
    This approach is necessary to prevent excessive litigation in
    the turnover between opposing political administrations
    and to deter incumbent public employees from protecting
    their jobs by simply neglecting particular responsibilities.
    Riley, 
    425 F.3d at 361
    .
    Allen argues that we must look beyond his official job
    description to consider the tasks he actually performed. To
    reach this point on summary judgment, however, he must
    provide specific facts demonstrating that the description
    was unreliable and unauthoritative. See 
    id.
     He must show,
    for example, that the description has been manipulated
    in some manner by officials looking to expand their political
    power. 
    Id.
     Practically, we look to see how the description
    was created and when, and how often, it was updated. 
    Id.
    The job description before us, for Bureau Chief, Accounting
    and Auditing, is dated June 1, 1985. The document bears no
    outward indications of having been recently manipulated to
    be suddenly drawn within the realm of policymaking.
    Moreover, at no point in this litigation has Allen suggested
    that the description is unreliable. Contrarily, Allen relied
    on the official description himself to argue that, when
    viewed in the light most favorable to his case, the Bureau
    Chief position was not one requiring political loyalty.
    Plaintiff’s Br. at 15-16. Given this implicit acceptance, we
    look solely to the job description to determine if political
    affiliation is an appropriate job requirement, thus warrant-
    ing summary judgment for the defendants. See Pierson, 
    437 F.3d at 588
    .
    In reviewing Allen’s job description, we see that his
    former position has broad discretion and authority over
    2
    (...continued)
    ing for further factual development where the district court con-
    sidered only the plaintiff ’s affidavit).
    10                                               No. 05-2026
    IDOT accounting and auditing. The Bureau Chief is
    responsible for establishing fiscal control procedures,
    directing internal and external audits, and informing
    management of possible problems in expenditures or fiscal
    agreements. In directing these concerns and possible
    solutions to his superior, the Director of Finance and
    Administration, the Bureau Chief has considerable input
    into government decisionmaking and the implementation of
    goals stemming from that process.
    Additionally, the effective and reliable execution of the
    Bureau’s audit function is of great political value. The
    Bureau Chief oversees the formulation of audit policies,
    procedures, and special examinations. These audits are
    conducted on both the internal functions of the IDOT and
    the Department’s contracts with third-parties. The audits
    ensure the Department’s efficient operation and the
    reliability of its financial data. The effective implementation
    of this policy has great impact on the administration’s
    public reputation. See Selch, 5 f.3d at 1046 (holding subdis-
    trict superintendents of Indiana Department of Highways
    exempt from First Amendment employment protections
    because of the significant representative role their work
    played in relation to the political administration). The
    Bureau Chief is then responsible for coordinating IDOT
    audits with the Federal Highway Administration, as well as
    communicating with the Illinois Auditor General and
    Legislative Audit Commission on Departmental audits.
    External audits such as these have the potential to cause
    great embarrassment for the administration if it is revealed
    that the Department is not operating in a fiscally efficient
    manner. See Auditor: IDOT Reorganization Costs Taxpay-
    ers, CHICAGO BUSINESS, Mar. 8, 2006 at http://www.
    chicagobusiness.com/cgi-bin/ news.pl?id=19785.
    Further, the Bureau Chief serves an important role in
    representing the IDOT in a larger political context. One of
    the “[m]ajor challenges” of the Bureau Chief’s job is to
    No. 05-2026                                                11
    respond to legislator questions on fund expenditures in
    their districts. In Selch, we held that similar communica-
    tions with public officials regarding highway expendi-
    tures required political sensitivity, thus demonstrating a
    need for political loyalty. 
    5 F.3d at 1046-47
    .
    Allen claims, however, that when viewed in a light most
    favorable to his claim, the job description demonstrates that
    political affiliation is an inappropriate hiring criterion. He
    directs our attention to the fact that the Bureau Chief is
    constrained by “[s]tate and [f]ederal regulations, Depart-
    mental rules and regulations, and the general goals and
    objectives established by the Secretary.” Defendants’ Br. at
    A3. Because his actions had to comport with the Secretary’s
    goals, he argues, he was not in a position to formulate
    policy that would result in the kind of principled disagree-
    ment addressed in Kiddy-Brown. But, if the inability to set
    goals contrary to those of one’s superior was the test for
    determining the appropriateness of considering political
    affiliation in government hiring, no employee under the
    governor would be found exempt from First Amendment
    protection. Instead, we look to the ability to offer input into
    government decisionmaking. In creating and implementing
    Department accounting and audit policies, reviewing third-
    party agreements and proposing changes to the content of
    these agreements, Allen did indeed have the requisite input
    to exempt him from the First Amendment’s protection.
    Selch, 
    5 F.3d at 1046
    ; Wilbur v. Mahan, 
    3 F.3d 214
    , 217
    (7th Cir. 1993). We find that when viewed in the light most
    favorable to Allen, the job description presents no genuine
    issue of material fact as to the whether political affiliation
    was an appropriate hiring criterion for the position of
    Bureau Chief of Accounting and Auditing.
    C. Due Process
    Lastly, Allen claims that his dismissal from IDOT
    employment violated his Fourteenth Amendment right to
    12                                               No. 05-2026
    due process. This claim was also rejected at summary
    judgment by the district court, so we review this issue de
    novo as well. Semien, 
    436 F.3d at 809
    . To prove his claim,
    Allen must demonstrate “(1) that [he] had a constitutionally
    protected property interest, (2) that [he] suffered a loss of
    that interest amounting to a deprivation and (3) that the
    deprivation occurred without due process of the law.”
    Kiddy-Brown, 
    408 F.3d at
    360 (citing Polenz v. Parrott, 
    883 F.2d 551
    , 555 (7th Cir. 1989). Our ruling turns on the first
    factor. The property interest in employment that Allen
    seeks to protect does not arise out of the Constitution itself.
    Bd. of Regents v. Roth, 
    408 U.S. 564
    , 577 (1972); Crim v. Bd.
    of Educ. of Cairo Sch. Dist. No. 1, 
    147 F.3d 535
    , 545 (7th
    Cir. 1998). Instead, Allen’s claim must be grounded in some
    independent “state statute, regulation, municipal ordinance,
    or an express or implied contract—those rules or under-
    standings that secure certain benefits and that support
    claims of entitlement to those benefits.” Kiddy-Brown, 
    408 F.3d at 360
     (internal citation omitted).
    Allen argued in his pleadings, and again on appeal, that
    he is protected by the “personnel code and rules pertaining
    to State of Illinois employees,” but he gives us no greater
    detail than this. Plaintiff’s Br. at 16-17. Such an abbrevi-
    ated argument would have been appropriate when Allen
    was responding only to the motion for judgment on the
    pleadings. But, when the district court converted that
    motion into one for summary judgment, and allowed, on
    Allen’s motion, an extension of time in which to file addi-
    tional materials, it was incumbent upon him to identify
    “specific facts to establish that there is a genuine triable
    issue.” Bilow v. Much Shelist Freed Denenberg Ament &
    Rubenstein, P.C., 
    277 F.3d 882
    , 893 (7th Cir. 2001). He did
    not. Turning to the Illinois Personnel Code, however, we see
    that “[t]he technical and engineering staffs of the Depart-
    ment of Transportation” are exempted from its coverage. 20
    ILCS 415/4c(12). And, as noted on Allen’s IDOT job descrip-
    No. 05-2026                                                13
    tion, the Bureau Chief for Accounting and Auditing is
    classified as Technical Manager VIII, thus establishing his
    general exemption from those rules from which he claims
    relief. Given Allens’ failure to identify an independent state
    law ground for a protected property interest in his IDOT
    position, we find that the district court did not err in
    granting summary judgment on his due process claim.
    The decisions of the district court are AFFIRMED.
    A true Copy:
    Teste:
    ________________________________
    Clerk of the United States Court of
    Appeals for the Seventh Circuit
    USCA-02-C-0072—8-22-06
    

Document Info

Docket Number: 05-2026

Judges: Per Curiam

Filed Date: 8/22/2006

Precedential Status: Precedential

Modified Date: 9/24/2015

Authorities (17)

Elton J. Crim v. Board of Education of Cairo School ... , 147 F.3d 535 ( 1998 )

Fannie B. Kalis v. Colgate-Palmolive Company, Millen True ... , 231 F.3d 1049 ( 2000 )

Kathleen Semien v. Life Insurance Company of North America, ... , 436 F.3d 805 ( 2006 )

Samuel Riley v. Rod R. Blagojevich, Thomas Snyder v. Rod R. ... , 425 F.3d 357 ( 2005 )

Edward Nekolny, Patrick Dumas, and Maria L. Dahms v. Ann B. ... , 653 F.2d 1164 ( 1981 )

Mark A. Pierson, Warden v. Rod Blagojevich, Governor, and ... , 437 F.3d 587 ( 2006 )

Jerome Polenz and Donna Polenz v. Thomas Parrott and ... , 883 F.2d 551 ( 1989 )

Roy Wilbur v. Charles L. Mahan , 3 F.3d 214 ( 1993 )

Sharon Swarsensky Bilow, Cross-Appellee v. Much Shelist ... , 277 F.3d 882 ( 2001 )

Thomas P. Davis and Cathy M. Davis v. G.N. Mortgage ... , 396 F.3d 869 ( 2005 )

sandra-kiddy-brown-v-rod-blagojevich-individually-and-as-governor-of-the , 408 F.3d 346 ( 2005 )

john-w-selch-v-christine-w-letts-in-her-official-capacity-as-the , 5 F.3d 1040 ( 1993 )

moses-meeks-jose-lopez-emitt-barge-george-butler-carl-hutchinson , 779 F.2d 417 ( 1985 )

Board of Regents of State Colleges v. Roth , 92 S. Ct. 2701 ( 1972 )

Branti v. Finkel , 100 S. Ct. 1287 ( 1980 )

Elrod v. Burns , 96 S. Ct. 2673 ( 1976 )

Matsushita Electric Industrial Co., Ltd. v. Zenith Radio ... , 106 S. Ct. 1348 ( 1986 )

View All Authorities »