Bordelon, Lionel v. Chicago School Refor

In the
United States Court of Appeals
For the Seventh Circuit
No. 99-3803
Lionel Bordelon,
Plaintiff-Appellant,
v.
Chicago School Reform
Board of Trustees,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern
Division.
No. 98 C 1932--Robert W. Gettleman, Judge.
Argued September 21, 2000--Decided November
15, 2000
Before Rovner, Diane P. Wood, and Williams,
Circuit Judges.
Williams, Circuit Judge. Lionel Bordelon
is employed by the Chicago School Reform
Board of Trustees ("the Board") as
principal of Kozminski Community Academy,
a Chicago public school. This lawsuit
arises from his involuntary transfer to
administrative duties at the Board’s
Department of Schools and Regions. He
sued the Board under 42 U.S.C. sec. 1983,
seeking an injunction and damages for
violation of his Fourteenth Amendment
right to due process. The district court
granted Bordelon’s request for a
preliminary injunction, but granted
summary judgment to the Board on
Bordelon’s claim for damages. Bordelon
appeals the district court’s grant of
summary judgment to the Board. We affirm.
I
Bordelon entered into a contract with
Kozminski Local School Council ("Local
School Council"), as agent for the Board,
to serve as principal of Kozminski
Community Academy for a four-year term
beginning July 1, 1995. Under the
contract, Bordelon could be terminated
only for cause (and other reasons not
relevant here), and then only after being
afforded the notice and hearing
procedures prescribed by the Illinois
School Code. See 105 Ill. Comp. Stat.
5/34-85. During the second year of his
contract, the Local School Council
charged Bordelon with various misdeeds,
including violations of state and federal
law, and recommended that the Board
revoke his contract. After a lengthy
investigation, the Board’s chief
executive officer, Paul Vallas,
determined that many of the Local School
Council’s charges against Bordelon were
unfounded, and concluded that those
charges that were founded were
insufficient to warrant Bordelon’s
removal as principal of Kozminski.
However, this did not end the matter. In
March 1997, Bordelon was "temporarily"
reassigned to administrative duties at
the Board’s Office of Schools and Regions
(the "Central Office"). This transfer was
accomplished without a hearing, pursuant
to a Board rule that purportedly allows
reassignment of principals if the
Superintendent of Schools determines that
it is in the best interest of the Chicago
Public Schools. While assigned to the
Central Office, Bordelon received the
same pay and benefits he received as
principal of Kozminski.
A year later, still assigned to the
Central Office and unable to obtain
information from the Board about the
nature of the charges against him or any
indication of when he would be returned
to Kozminski, Bordelon filed suit against
the Board for injunctive relief and
damages. Bordelon claimed that the Board
deprived him, without due process, of
liberty and property interests when it
transferred him to the Central Office.
Bordelon claimed that he was damaged both
by the transfer itself, and by Board
statements to the media at the time of
his transfer that indicated that he was
still under investigation, when
apparently, he was not./1
In June 1998, the district court held
that Bordelon was entitled to a
preliminary injunction based on his claim
that his transfer to the Central Office
deprived him, without due process, of his
property interest in his position as
principal, and ordered Bordelon’s
reinstatement as principal of Kozminski.
Bordelon v. Chicago Sch. Reform Bd. of
Trustees, 8 F. Supp. 2d 779 (N.D. Ill.
1998)./2 In January 1999, the Local
School Council renewed Bordelon’s
contract for an additional term.
After discovery, the Board moved for
summary judgment, arguing that Bordelon
could not establish any tangible loss of
income, benefits, or employment
opportunities as a result of the Board’s
conduct. The Board also moved to strike
the statement filed by Bordelon pursuant
to Northern District of Illinois Local
Rule 12(N) in opposition to the Board’s
summary judgment motion. The district
court granted the Board’s motion to
strike Bordelon’s statement and also its
motion for summary judgment. Bordelon
then filed a motion to alter or amend the
judgment under Federal Rule of Civil
Procedure 59(e), which the court denied.
On appeal, Bordelon asserts that the
district court erred: (1) in striking his
Local Rule 12(N) statement opposing
summary judgment; (2) in denying his Rule
59(e) motion to alter or amend the
judgment; and (3) in granting the Board’s
motion for summary judgment on the merits
of his sec. 1983 due process claim. We
address each of these claims in turn.
II
A. Plaintiff’s Rule 12(N) Statement
The Local Rules of the Northern District
of Illinois impose certain requirements
for supporting and opposing motions for
summary judgment. In particular, the
moving party is required to support its
summary judgment motion with "a statement
of material facts as to which the moving
party contends there is no genuine issue
and that entitle the moving party to a
judgment as a matter of law." N.D. Ill.
Local Rule 12(M)(3)./3 The opposing
party must submit a statement responding
to each numbered paragraph of the
movant’s statement, supporting any
disagreement with "specific references to
the affidavits, parts of the record, and
other supporting materials relied upon."
N.D. Ill. Local Rule 12(N)(3)(a). Unless
controverted in this manner in the
opponent’s 12(N) statement, all material
facts set forth in the movant’s statement
are deemed admitted. N.D. Ill. Local Rule
12(N)(3)(b).
We have noted before the important
function served by local rules that
structure the summary judgment process,
like Local Rules 12(M) and (N) in the
Northern District of Illinois. See
Markham v. White, 172 F.3d 486, 490 (7th
Cir. 1999). These rules "assist the court
by organizing the evidence, identifying
undisputed facts, and demonstrating
precisely how each side proposed to prove
a disputed fact with admissible
evidence." Id. Given their importance, we
have consistently and repeatedly upheld a
district court’s discretion to require
strict compliance with its local rules
governing summary judgment. Midwest
Imps., Ltd. v. Coval, 71 F.3d 1311, 1316
(7th Cir. 1995); Waldridge v. Am. Hoechst
Corp., 24 F.3d 918, 922 (7th Cir. 1994)
(collecting cases).
The district court found that Bordelon’s
12(N) statement contained evasive and
contradictory answers and legal argument,
and struck the statement in its entirety.
As a consequence, the court accepted the
material facts in the Board’s statement
as true, as it was entitled to do under
Local Rule 12(N)(3). We review the
district court’s rulings on Rule 12(N)
statements for an abuse of discretion.
Day v. N. Ind. Pub. Serv. Corp., 164 F.3d
382, 384 (7th Cir. 1999); Feliberty v.
Kemper Corp., 98 F.3d 274, 278 (7th Cir.
1996). An examination of Bordelon’s 12(N)
statement convinces us that the district
court did not abuse its discretion in
striking it. The statement is so full of
argument, evasion, and improper denials
that it defeats the whole point of Local
Rule 12(N)--to identify just what facts
are actually in dispute.
One example singled out by the district
court is typical of Bordelon’s statement.
In response to the Board’s assertion that
"Bordelon was assigned to administrative
duties in the Office of Schools and
Regions from March 11, 1997, to June 22,
1998," Bordelon replied:
Denied. This Honorable Court has already
held that "Nothing in Section 1023.8(b)
[of the Illinois Schools Code] gives
defendant the right to transfer plaintiff
to a "paper shuffler" position in the
Central Office. Judge Ashman held, and
this court agreed, that the two positions
are not similar for purposes of the act."
As Miguel Rodriguez stated at his
deposition, Mr. Bordelon’s "office" at
Camp Beverly, was in an "old warehouse"
"in open space" with one large room with
dividers and Mr. Bordelon’s "space" was
"on the way to the men’s bathroom." (M.
Rodriguez Dep. pp. 16, 55.) Plaintiff had
no "duties" and was not evaluated.
(Vallas Dep. p. 53)
While this response appears to take
issue with the Board’s reference to
"administrative duties," Bordelon was
required at the very least to respond to
the Board’s assertion that he was
reassigned to the Central Office during
the identified period. And because he
admitted as much in his deposition, he
was not entitled to deny this fact in his
12(N) statement. Indeed, as the district
court noted, Bordelon’s assignment to the
Central Office is at the heart of his
entire claim. This pattern of evasive
denials along with improper argument is
repeated throughout his statement.
In defense of his 12(N) statement,
Bordelon first argues that his responses
were technically in compliance with Rule
12(N) because he did either admit or deny
each of the Board’s assertions and
provided citations to the record.
However, Rule 12(N) is not satisfied by
evasive denials that do not fairly meet
the substance of the material facts
asserted. It is also not satisfied by
citations to the record that support
legal argument rather than controvert
material facts. In other words, for a
12(N) statement to be useful, denials
must be made only if the material fact
asserted is actually in dispute. And if a
material fact is not disputed (or if
there is no evidence that controverts the
fact), the district court is entitled to
know that up front, without first having
to examine citations to evidence having
only marginal bearing on the
question./4 Therefore, we agree with
the district court that Bordelon’s
statement was not in compliance with Rule
12(N).
Bordelon next claims that the penalty
imposed by the district court, striking
the entire statement, was too harsh, and
that the court should instead have
stricken only the offending material. We
think, however, that the purpose of Local
Rules 12(M) and (N)--to require the
parties to identify the disputed issues
in a concise format--would be defeated if
the court were required to wade through
improper denials and legal argument in
search of a genuinely disputed fact.
Under these circumstances, we find no
abuse of discretion in the district
court’s decision to strike Bordelon’s
statement in its entirety.
Finally, Bordelon asserts that even if
the court disregarded his 12(N)
statement, it should have considered the
affidavits that were filed with his
summary judgment response. If Bordelon
were correct, then Local Rules 12(M) and
(N) would have no effect. Under these
rules, the district court is entitled to
limit its analysis of the facts on
summary judgment to evidence that is
properly identified and supported in the
parties’ statements. See Markham, 172
F.3d at 490; Bradley v. Work, 154 F.3d
704, 708 (7th Cir. 1998); Knoblauch v.
DEF Express Corp., 86 F.3d 684, 690 (7th
Cir. 1996). Because the district court
found that Bordelon’s 12(N) statement was
entirely non-compliant, it does not
matter that evidence may have existed in
the record to create a disputed issue of
fact. We think that Local Rule 12(N)(3)
makes this plain when it prescribes the
consequence for noncompliance--the
movant’s assertions of material fact are
deemed admitted--and this consequence
applies regardless of what contrary
evidence is in the record. Accordingly,
the district court was entitled to
disregard Bordelon’s affidavit evidence.
B. Motion to Alter or Amend the Judgment
Bordelon also appeals the district
court’s denial of his motion to alter or
amend the judgment under Federal Rule of
Civil Procedure 59(e). Rule 59(e) allows
the movant to bring to the district
court’s attention a manifest error of law
or fact, or newly discovered evidence. LB
Credit Corp. v. Resolution Trust Corp.,
49 F.3d 1263, 1267 (7th Cir. 1995). It
"does not provide a vehicle for a party
to undo its own procedural failures, and
it certainly does not allow a party to
introduce new evidence or advance
arguments that could and should have been
presented to the district court prior to
the judgment." Moro v. Shell Oil Co., 91
F.3d 872, 876 (7th Cir. 1996). We review
the district court’s denial of Bordelon’s
Rule 59(e) motion for an abuse of
discretion. Id.Bordelon first claims that the court
abused its discretion in not giving him
an opportunity to amend his Local Rule
12(N) statement. However, Bordelon never
sought leave to amend, even after the
Board moved to strike his statement, and
only suggested the possibility in his
Rule 59(e) motion after the adverse
ruling on summary judgment. Under these
circumstances, we think the district
court was within its discretion in
refusing to allow Bordelon to use Rule
59(e) to "undo" the shortcomings of his
Local Rule 12(N) statement.
Bordelon next claims that the district
court should have reconsidered its
summary judgment decision in light of the
affidavit of Bordelon’s expert, Dr.
Julius Menacker, which Bordelon submitted
more than two months after his response
to the Board’s motion for summary
judgment, but before the court issued its
summary judgment decision. Bordelon
offered no explanation in his Rule 59(e)
motion (or in his briefs on appeal) why
the affidavit could not have been offered
earlier. At oral argument, Bordelon’s
counsel referred to difficulties in
obtaining affidavit testimony from
education professionals during the summer
months, but as far as we can tell, this
difficulty was never brought to the
attention of the district court.
Accordingly, the district court was
within its discretion in refusing to
allow Bordelon to supplement the record
through his Rule 59(e) motion. See Moro,
91 F.3d at 876 (upholding denial of Rule
59(e) motion that urged consideration of
late-filed affidavits).
C. Due Process Claim
We turn now to the merits of the
district court’s decision granting the
Board summary judgment, a decision we
review de novo. See Rodriguez v. City of
Chicago, 156 F.3d 771, 775 (7th Cir.
1998). In support of his due process
claim, Bordelon argues that he had a
protected property interest in his job as
principal of Kozminski. He claims he was
deprived of that interest when the Board
transferred him, without a hearing, to
administrative duties in the Central
Office. Bordelon also claims that the
transfer and its attendant publicity
violated his "liberty interest," which we
understand to mean his liberty interest
in pursuing the occupation of his choice.
He seeks compensation for harm to his
home life, health, and reputation, and
for the loss of professional satisfaction
and future job opportunities caused by
the transfer and adverse publicity. We
hold that Bordelon has not offered
evidence that would allow a jury to find
in his favor on either a property or
liberty interest theory, and therefore
affirm the district court’s grant of
summary judgment in favor of the Board.
1. Deprivation of Property Interest
Bordelon’s contract gave him a right to
his position as principal for four years,
subject only to removal for cause.
Therefore, we agree with the district
court that Bordelon had a property
interest in completing his contract in
accordance with its terms. See Head v.
Chicago Sch. Reform Bd. of Trustees, 225
F.3d 794, 803 (7th Cir. 2000); Jones v.
City of Gary, Ind., 57 F.3d 1435, 1440-41
(7th Cir. 1995).
However, to be actionable under the due
process clause, the deprivation of a
public employee’s property interest in
continued employment must be more than de
minimis. Head, 225 F.3d at 803; Swick v.
City of Chicago, 11 F.3d 85, 87 (7th Cir.
1993). "[P]urely dignitary or otherwise
nonpecuniary dimensions of employment"
are not property interests protected by
the due process clause of the Fourteenth
Amendment. Swick, 11 F.3d at 87; see also
Crim v. Bd. of Educ., 147 F.3d 535, 546-
47 (7th Cir. 1998). Therefore, to recover
for a deprivation of a property interest,
Bordelon must show some economic loss
from the Board’s actions, or at least
establish an identifiable impact on his
future income or economic benefits. Head,
225 F.3d at 803; Swick, 11 F.3d at 86-87.
It is undisputed that, during his
assignment to the Central Office,
Bordelon continued to receive his regular
pay and benefits. Bordelon argues,
however, that he suffered a sufficient
deprivation of his property interest
because the Board’s conduct caused harm
to his home life, health, and reputation,
and resulted in a loss of professional
satisfaction and future job
opportunities.
As an initial matter, we note that,
because the district court struck
Bordelon’s 12(N) statement, most of the
evidence relating to these alleged
injuries was not before the court, and
instead, the material facts in the
Board’s 12(M) statement were deemed
admitted./5 But even consideringall the
evidence that Bordelon offers in support
of his claim (including the evidence
cited in his non-compliant 12(N)
statement and the affidavit submitted two
months after his summary judgment
response), Bordelon’s evidence would not
permit a reasonable jury to find that he
suffered any direct or indirect pecuniary
loss caused by the Board’s actions.
First, the loss of professional
satisfaction and damage to personal
relationships, reputation, and health,
though painful to the plaintiff, are
plainly not pecuniary injuries. Whether
or not Bordelon could recover for these
injuries as damages incidental to a
deprivation of his property interest, he
must first prove a direct or indirect
economic harm to establish an actionable
deprivation.
Second, although it is conceivable that
his reassignment to the Central Office
could impact Bordelon’s future job
opportunities in a way that could
establish an actionable deprivation of
property, see Head, 225 F.3d at 803,
Bordelon has failed to offer evidence
sufficient to establish a genuine issue
of fact as to any such impact. For
example, he offered no evidence that he
sought and was denied any employment
opportunities as a result of the Board’s
actions, and it is undisputed that his
contract as principal was renewed for an
additional four-year term./6
Because Bordelon failed to offer
evidence sufficient to allow a jury to
find any direct or indirect economic harm
as a result of the Board’s conduct,/7
the Board was entitled to summary
judgment on Bordelon’s claim for
deprivation of his property interest.
2. Deprivation of Liberty Interest
If the character and circumstances of a
public employer’s stigmatizing conduct or
statements are such as to have destroyed
an employee’s freedom to take advantage
of other employment opportunities, the
employee can bring suit based on the
deprivation of his freedom to pursue the
occupation of his choice, a liberty
interest protected by the due process
clause of the Fourteenth Amendment.
Olivieri v. Rodriguez, 122 F.3d 406, 408
(7th Cir. 1997). It is not enough that
the employer’s stigmatizing conduct has
some adverse effect on the employee’s job
prospects; instead, the employee must
show that the stigmatizing actions "make
it virtually impossible for the employee
to find new employment in his chosen
field." Head, 225 F.3d at 801; see
Olivieri, 122 F.3d at 408.
Because Bordelon’s contract as principal
of Kozminski was renewed, he cannot show
that it is "virtually impossible" for him
to work in his chosen field. See Lawson
v. Sheriff of Tippecanoe County, 725 F.2d
1136, 1139 (7th Cir. 1984) (observing
that an offer of re-employment at an
equivalent level would negate a
deprivation of plaintiff’s liberty
interest). Thus, even crediting all of
Bordelon’s evidence about the effects of
the Board’s actions on his personal and
professional reputation (no matter how
speculative, and whether or not that
evidence was before the court on summary
judgment), he cannot establish a
deprivation of his freedom to pursue his
chosen occupation, and his liberty
interest claim must fail as a matter of
law.
III
We conclude by noting that while we have
not found an actionable deprivation of
property or liberty, this is not to say
that we are unsympathetic to Bordelon’s
claims, but not all torts or contract
breaches committed by government entities
are constitutional or civil rights
violations with redress in federal court.
Affirmed.
/1 Bordelon also brought a state law claim for
breach of contract, but has not asserted any
error with respect to that claim.
/2 The preliminary injunction is not before us on
appeal, and we therefore offer no opinion on
whether it was properly granted.
/3 While the motion for summary judgment was pending
below, the Northern District of Illinois revised
and renumbered its local rules. Local Rule 12(M)
was reclassified as Rule 56.1(a), and Rule 12(N)
was reclassified as Rule 56.1(b). We refer to
these rules by the earlier designations, the
convention used by the district court and by the
parties in their briefs on appeal.
/4 As is apparent from the quoted response, Bordelon
believes that he was entitled to support his
denials with references to the findings and legal
conclusions made by the district court at the
preliminary injunction stage. But a court’s
findings and conclusions at the preliminary
injunction stage are by nature preliminary. They
are typically based on an incomplete record,
using a different standard (likelihood of success
on the merits), and therefore are not binding at
summary judgment. See Thomas & Betts Corp. v.
Panduit Corp., 138 F.3d 277, 292 (7th Cir. 1998).
Accordingly, Bordelon was not entitled to rely on
these findings, but instead was required to cite
to affidavits or other record evidence to
establish disputed issues of material fact.
/5 Ordinarily, in reviewing summary judgment, we
construe the facts in the light most favorable to
the non-movant. But because the district court
struck Bordelon’s 12(N) statement, we, like the
district court, accept as true the Board’s
statement of material facts. See Feliberty, 98
F.3d at 277-78; Midwest Imps., 71 F.3d at 1313;
Johnson v. Gudmundsson, 35 F.3d 1104, 1108 (7th
Cir. 1994).
/6 The untimely affidavit of Bordelon’s expert, Dr.
Menacker, which describes the likely effect of
Bordelon’s reassignment to the Central Office on
Bordelon’s future job opportunities, does not
change our opinion. Menacker’s affidavit lacks a
proper factual basis and is too speculative to
create a genuine issue of material fact. Menacker
did not survey actual employers about Bordelon’s
credentials, or otherwise provide a factual basis
for his predictions about future harm.
Furthermore, Menacker failed to take into account
the fact that Bordelon’s contract as principal
was renewed, or analyze what impact that re-
employment would have on other employers’
evaluation of Bordelon, or indeed on Bordelon’s
career in the Chicago Public Schools.
/7 At the preliminary injunction stage, Bordelon’s
likelihood of success on the merits (and
therefore his entitlement to the injunction) was
based, in part, on Bordelon’s allegations of
damage to his future job opportunities. At
summary judgment, however, Bordelon must do more
than rely on allegations to show an actionable
deprivation of a property interest; he must
support those allegations with evidence
sufficient to allow a jury to find that he
suffered that economic harm. See Fed. R. Civ. P.
56(e).