In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 01-3814
ROSE NIEVES,
Plaintiff-Appellant,
v.
BOARD OF EDUCATION OF THE CITY OF CHICAGO,
and SHARON R. BENDER, in her individual capacity,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 99 C 1741—Wayne R. Andersen, Judge.
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ARGUED MAY 16, 2002—DECIDED JULY 30, 2002
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Before EASTERBROOK, ROVNER, and DIANE P. WOOD,
Circuit Judges.
ROVNER, Circuit Judge. Rose Nieves worked for the Chi-
cago Board of Education (the “Board”) from June 1984 until
June 1998, with her last position being that of Security
Supervisor II at Schurz High School. In June 1998, she
received a letter from Sharon Rae Bender, the principal
at Schurz, indicating that her position had been closed,
and in July 1998 received a letter from Paul Vallas, then-
CEO of the Chicago Public Schools, confirming that she
was laid off as part of a reduction in force (RIF). Nieves
was unable to obtain another position in the Chicago Pub-
2 No. 01-3814
lic Schools until August 2000. She filed suit against her
principal, Bender, and the Board, alleging that she was
terminated because she exercised her constitutional right
to free speech, in violation of § 1983 and state law.
During the relevant time period, Bender was principal
of Schurz High School and Nieves was employed as a
Security Supervisor II. Nieves acknowledges receiving a
memorandum from Bender to all employees whose posi-
tions were funded through state Chapter I funds, inform-
ing them that some of their positions might be closed as
a result of a decrease in Chapter I funding at Schurz. In
December 1997, Bender received confirmation that Schurz’
state Chapter I funding would indeed be reduced by ap-
proximately $278,000 for the next year. During this time
period, Schurz was on academic probation because a high
percentage of its students had tested below grade level
in reading. Accordingly, the budget at Schurz was no long-
er controlled by the local school council, but instead all
budget decisions had to be approved by a probation man-
ager, who emphasized that the top priority at the school
had to be an improvement of reading scores. Bender there-
fore decided that she needed to hire a reading teacher for
the next year, and because that teacher had to be paid
through Chapter I funds, that decision further strained
that funding source. Bender decided to eliminate five
Chapter I-funded positions and did so on the first avail-
able date to include the position closings in the lump sum
budget, which was February 17, 1998. Nieves later re-
ceived the June letter from Bender and the July letter
from Vallas indicating that her position was closed and
that she was laid off as part of an RIF. The five Chapter I-
funded positions closed were: Security Supervisor II, teach-
er assistant, teacher, guidance counselor aide, and school
security aide. The aide positions were vacant at the time
of the decision, and the employees in the teacher and
teacher assistant positions obtained other jobs at Schurz.
No. 01-3814 3
Nieves testified that after her position was closed, she
was aware that other positions for which she was qual-
ified were available at Schurz, but she did not apply for
any of those positions. Nieves did not obtain another
position in the Chicago schools until August 2000, when
she was hired as a guidance counselor aide at Prosser High
School. Bender hired a new reading teacher in 1998 and the
reading scores improved such that Schurz was taken off
academic probation in 1999.
Those facts are undisputed by the parties. Other facts,
however, forming the basis of the complaint, are contested.
Nieves contends that her termination was not a response
to the Chapter I funding problems, but was actually in
retaliation for an incident that occurred in January 1998
regarding the provision of bilingual tutoring services to
Hispanic and Polish students.
Nieves states that in January 1998 she stopped two
students of Polish descent in the hallway to ask where
they were going. They declared that they were going to
Room 138 for English language tutoring. Previously,
Nieves had been informed that Room 138 was to be kept
locked and that tutoring would not take place there. Nieves
then stated to them that the Hispanic students were told
that they had to come before or after school or on week-
ends for tutoring. She also contacted her supervisor and
complained that Polish students were receiving tutoring
opportunities unavailable to Hispanic students. The next
day, she was called into a meeting with Bender, in which
Bender expressed her anger over the incident. Bender con-
cluded the meeting by suggesting that Nieves apply for
an administrative transfer to another school and stated
that she would sign such a transfer request. Bender later
sent a note to Nieves, reiterating that Nieves’ statements
were lies and offering an administrative transfer.
Bender acknowledges that the incident occurred, although
she asserts that she confronted Nieves because Nieves used
4 No. 01-3814
an inappropriate term, “Pollacks” to refer to the students
of Polish descent, and because Nieves was creating prob-
lems in the school by erroneously declaring that Hispanic
students were not provided equal opportunities, saying
in front of students that the Polish students get all the
special treatment. She also stated that she offered the
administrative transfer because a person from the Safety
and Security department who visited the school a few
months before the incident had expressed surprise that
Nieves still worked there and had told Bender that
Nieves wanted an administrative transfer to another
school. Nieves did not introduce any evidence rebutting
that testimony. Regarding the speech incident in general,
however, there is a factual dispute concerning what tran-
spired and whether the speech was truthful or false and
inflammatory. That dispute cannot be resolved on sum-
mary judgment. Therefore, for purposes of this appeal from
summary judgment, we assume that in January 1998
Nieves was engaged in speech regarding a matter of pub-
lic concern that is protected under the First Amendment.1
Bender responds that the termination decision was
based on the Chapter I funding problem and on the needs
of the school. In support of her position, she states that in
November 1997—before the protected speech occurred—she
contacted Curtis Goodman, a Board employee who worked
in the Bureau of Employee and Labor Relations, and asked
him for the job descriptions for a couple of positions,
including Security Supervisor II. She further asked him
whether she could close the Security Supervisor II posi-
tion and a teacher aide position without having a griev-
ance. Goodman allegedly informed her that the position
1
Nieves also points to speech that occurred in March 1998 re-
garding gambling at the school, but that speech occurred after
the termination decision had been made and adds nothing to the
claim because we assume that the January speech was protected.
No. 01-3814 5
of Security Supervisor II was obsolete in that it was no
longer being used in the schools and no one else currently
held that position. He also allegedly informed her that she
could close those positions because they were Chapter I-
funded positions. Bender testified to those conversations
in her deposition apparently to show her state of mind
in December 1997 when she was evaluating her options
in light of the Chapter I funding deficit. In support of her
testimony, she included in the record a faxed note from
Goodman in November 1997 to Bender stating “FYI” and
attaching a copy of a phone message. That message was
from someone in Safety and Security, and states that
regarding the position at Schurz, a “234 position” (which
means a Chapter I position) opened by the principal may
be closed by the principal. That faxed note substanti-
ates Bender’s statement that she discussed closing the
Chapter I-funded security position months before the pro-
tected speech. Nieves offered no evidence to rebut that
allegation, such as a statement by Goodman disputing the
subject of their conversation.
In order to establish a claim under the First Amend-
ment, Nieves has the burden of establishing that her con-
duct was constitutionally protected, and that the protected
conduct was a “substantial” or “motivating” factor in the
decision to terminate her. Mt. Healthy City School District
Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977); Pugh v. City
of Attica, Indiana, 259 F.3d 619, 629-30 (7th Cir. 2001);
Gooden v. Neal, 17 F.3d 925, 928 (7th Cir. 1994). If she
carries that burden, then the defendants would have
the opportunity to establish that they would have reached
the same decision even in the absence of the protected
conduct. Id. We assume for the purpose of this summary
judgment motion that Nieves has demonstrated that she
engaged in speech that was constitutionally protected. The
only question for summary judgment purposes is whether
she established a genuine issue of material fact on the
6 No. 01-3814
question of causation—specifically whether she alleged
sufficient facts that her speech was a substantial or moti-
vating factor in the decision to close her position. In order
to avoid summary judgment, Nieves cannot merely rest
on the pleadings, but must move beyond those pleadings
and present positive evidence to support her position, such
as through affidavits, depositions, answers to interrogato-
ries, and admissions on file. Celotex Corp. v. Catrett, 477
U.S. 317, 324 (1986). Moreover, “[w]hen the moving par-
ty has carried its burden under Rule 56(c), its opponent
must do more than simply show that there is some meta-
physical doubt as to the material facts. . . . Where the
record taken as a whole could not lead a rational trier of
fact to find for the non-moving party, there is no ‘genuine
issue for trial.’ ” Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586 (1986).
Essentially, in support of the causation element, Nieves
offers only (1) her unsupported allegation that the deci-
sion was made after the protected speech and (2) the tim-
ing of the termination, occurring approximately one month
after the protected speech. Neither of these is sufficient
to survive summary judgment on causation. Nieves’ mere
allegation that the decision was made after her protected
speech is insufficient to create a genuine issue of fact be-
cause it is not based on personal knowledge and has no
other support in the record. She relies for that opinion not
on any record evidence, but rather on the absence of
minutes or other notes establishing that the decision was
made earlier. The absence of such minutes, however, are
not helpful because Nieves introduced no evidence that
such minutes are generally kept regarding such decisions,
and in fact the testimony in the record from Bender was
that personnel decisions are private and would never ap-
pear in minutes. Nieves also does not point to any min-
utes or other notes maintained after the protected speech
indicating that the decision was made at that later time.
No. 01-3814 7
Accordingly, Nieves seeks to draw an inference that is
simply without any support in the record, and her mere
allegation is insufficient because she lacks personal knowl-
edge as to when the decision was made.
We note that this is not the type of situation in which
no other means were available to determine when the de-
cision was made. Nieves never sought to obtain deposition
testimony or written statements from other persons who
would have been involved in the decision, and who there-
fore could have cast light on when the decision was made.
For instance, she never sought to take the deposition
or statement from Curtis Goodman, with whom Bender
alleged she spoke in December concerning the duties of
Security Supervisor II and the ability to cut that position.
Moreover, Nieves did not attempt to take the deposition
of other members of the Finance Committee, or of the pro-
bation manager, who would also have been part of the
decision-making process.
Instead, Nieves relies primarily on the timing of the
decision, arguing that she received notification of the
decision one month after the protected speech. Timing
alone will rarely be sufficient to create a triable issue of
fact. Pugh, 259 F.3d at 630 (“[t]he timing of the action,
without more, is insufficient to establish the protected
activity as a motivating factor.”). In this case, Nieves
has presented no other evidence to connect the timing of
the decision to her protected expression. Nieves was not
fired for cause, but rather her position was eliminated as
part of an RIF that also eliminated four other positions
at the school. Although the two other persons affected
received other positions at the school, Nieves testified that
she did not apply for the open positions at Schurz even
though she was qualified for some of them and she knew
that she had to apply to obtain them. The RIF was con-
ducted in response to the loss of Chapter I funds and the
need to use available Chapter I funds to hire a reading
8 No. 01-3814
teacher in order to address the reading problems that had
placed the school on academic probation. Nieves does
not contest that Chapter I funding was significantly re-
duced, and that prior to her protected expression Bender
informed employees in all Chapter I positions that their
position might be eliminated as a result of the funding
cut. Finally, Nieves did not rebut the evidence that the
position of Security Supervisor II was obsolete, and that
it was not held by any other person in the Chicago pub-
lic schools. Nieves, in short, failed to offer any refutation
of the evidence that the decision to close her position, and
four other positions, was made in December when the
Chapter I funding cut became certain. Her failure to chal-
lenge those factual assertions renders largely irrelevant
any allegations that Bender wanted her to leave after the
speech incident. Because Nieves presented no other evi-
dence to establish causation, the court properly granted
summary judgment in favor of the defendants. Accordingly,
the decision of the district court is AFFIRMED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-97-C-006—7-30-02