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

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