In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-2127
EDWARD FRANKLIN,
Plaintiff-Appellant,
v.
CITY OF EVANSTON,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 99 C 8252—Joan Humphrey Lefkow, Judge.
____________
ARGUED FEBRUARY 19, 2004—DECIDED SEPTEMBER 27, 2004
____________
Before CUDAHY, POSNER and ROVNER, Circuit Judges.
CUDAHY, Circuit Judge. Edward Franklin, an employee
of the City of Evanston (the City), was arrested for posses-
sion of a small amount of marijuana. Learning of Franklin’s
arrest in the local paper, the City instituted disciplinary
proceedings against him while his criminal case was pend-
ing. Franklin unsuccessfully requested that the disciplinary
proceedings be continued for a few months until his criminal
case was resolved. The City pressed ahead with its disci-
plinary hearings, questioning Franklin about the criminal
charge without warning him, as we have long held to be
required by due process considerations, that he would be
2 No. 03-2127
granted immunity from prosecution based on his answers
and that a failure to answer would therefore be viewed
negatively. At oral argument, the City admitted that its
failure to provide Franklin with the required warnings was
pursuant to its policy based on an extremely narrow inter-
pretation of our case law, under which warnings would be
required only if the City explicitly required an employee to
answer questions on pain of losing his or her employment.
However, because the City’s admitted policy effectively does
not allow employees in Franklin’s situation an opportunity
to tell their side of the story without penalty, we find that
the City violated Franklin’s right to procedural due process
under 42 U.S.C. § 1983. For the reasons set out in this
opinion, the district court’s grant of summary judgment to
the City on this issue is therefore reversed.
I.
From 1975 until December 17, 1997, Franklin, an Afri-
can-American, worked for the Division of Streets and
Sanitation of the Public Works Department of the City of
Evanston. At the time of his termination, Franklin was
employed by the City as a Driver/Loader. On November 7,
1997, while off-duty, Franklin was arrested by Evanston
police and charged with possession of a small amount of can-
nabis (marijuana), a misdemeanor offense. The EVANSTON
REVIEW, a local paper, published his arrest in its “The
Police Blotter” section, where it came to the attention of one
of Franklin’s coworkers. The coworker showed the article to
Franklin’s immediate supervisor, Zeltee Edwards, the
Superintendent of the Division of Streets and Sanitation.
Edwards confirmed with the Evanston Police Department
that Franklin had been arrested.
On November 13, 1997, Edwards brought Franklin into a
brief meeting to discuss the charges. When asked to re-
spond to the allegations, Franklin refused, stating that he
No. 03-2127 3
could not say anything because he was facing a criminal
charge. Franklin indicated that the information in the pol-
ice report and the newspaper was all he knew. (R. 34, ex. 7.)
The City suspended Franklin without pay, pending an
investigation.
On November 26, 1997, a “due cause” meeting was held
to determine the maximum level of discipline Franklin
could receive. Franklin was not present at this meeting.
Judith Witt, the Director of Human Resources for the City,
was on the committee that authorized Franklin’s termina-
tion, though the final decision as to what level of discipline
to impose was left up to Edwards. The authorization to ter-
minate Franklin was based on Franklin’s alleged violation
of the 1989 Work Rules imposed by the 1995 Collective
Bargaining Agreement (CBA) between the City and the
union of which Franklin was a member.1
Under the Evanston City Code, after a due cause meeting,
an employee is entitled to a pre-disciplinary meeting, to
which he may be accompanied by a union representative.
On December 12, 1997, the City held such a meeting with
Franklin and his union representative. Franklin was again
asked at this meeting to respond to the criminal charge
pending against him. He neither admitted nor denied
possessing the marijuana because he did not want to
jeopardize his criminal defense. Instead, he requested post-
ponement of the meeting until after his criminal case—which
had been continued to February 5, 1998—was resolved. The
City denied his request, and Edwards decided that Franklin
should be terminated. On December 17, 1997, Franklin’s
employment with the City was terminated for violating the
1
The Work Rules had been substantially revised in 1991, and the
parties dispute which version was in effect at the time of Frank-
lin’s dismissal. However, the resolution of this dispute is unneces-
sary to the outcome of this case.
4 No. 03-2127
1989 version of Work Rule 23.1(e), which prohibited the
possession of illegal drugs.
Franklin was the first City employee to be discharged for
a violation of Rule 23.1(e). (R.34, ex. 9.) He points to a
Caucasian employee, Timothy Hartigan, who had been ar-
rested for driving under the influence (DUI) in 1996 but
was not discharged. However, the City notes that three
African-American employees were also subsequently ar-
rested for DUI and were not discharged.
Franklin’s union filed an official grievance on his behalf
and presented it to the City on December 31, 1997. (R. 34,
ex. 13.) At a January 26, 1998 hearing, the union argued that
the City should have waited until after Franklin’s criminal
charges had been resolved before disciplining him. Franklin’s
grievance was denied based on the City’s determination
that his refusal to respond to the criminal charges and his
alleged admission to police that he had possessed the mari-
juana validated the termination.2 On February 5, 1998,
Franklin’s criminal case was nolle prossed, and the criminal
charge against him was dismissed.
Franklin filed suit against the City, seeking damages for
the violation of his rights under 42 U.S.C. § 1983 and
§ 1981. Both parties subsequently filed cross motions for
summary judgment. On November 20, 2002, the district
court, relying on our decision in Atwell v. Lisle Park Dist.,
2
Franklin denies having admitted to police that he possessed the
marijuana found when he was arrested. Since this is a review of
the district court’s grant of summary judgment to the City, we
must take the facts in the light most favorable to the non-moving
party and must resolve disputed facts in Franklin’s favor. How-
ever, the fact that the City believed Franklin had admitted to
possessing the marijuana and terminated him (in part) on this
basis is not inconsistent with Franklin’s denial of having made
such an admission.
No. 03-2127 5
286 F.3d 987 (7th Cir. 2002), granted summary judgment to
Franklin on his § 1983 claim for violation of his right to
procedural due process. The district court found that the
City had failed to give Franklin a meaningful opportunity
to respond in the disciplinary proceedings since criminal
charges were pending and Franklin was compelled to re-
spond (by the fear of losing his job) without any guarantee
of immunity. (11/20/02 Order.) Although the district court
determined that the City had no express policy of requiring
an employee to forego his Fifth Amendment rights on pain
of losing his job, it found that Witt was a final policymaker
who had the authority to set policy for Evanston on issues
regarding drug and alcohol use and terminations and who
ratified the decision to terminate Franklin, concluding that
the City was therefore liable under § 1983. However, the
district court granted the City’s motion for summary judg-
ment on the other two aspects of Franklin’s § 1983 claim,
which were based on deprivation of liberty arising from a
state statute and on deprivation of equal protection due to
the alleged disparate impact of using arrest records in ter-
minating employees. The district court also granted the
City’s motion for summary judgment as to Franklin’s § 1981
disparate treatment and disparate impact claims.
The City subsequently filed a motion to reconsider, argu-
ing that Atwell should not apply retroactively and that Witt
was not a final policymaker, so the City should not be held
liable even if Franklin’s rights were violated. (Mot. to
Reconsider, R. 47.) On March 31, 2003, the district court re-
versed its grant of summary judgment to Franklin on his
§ 1983 procedural due process claim and instead granted
summary judgment to the City, accepting the City’s “long
overdue” fleshing out of its argument that Witt was not a
final policymaker. (3/31/03 Order). Franklin now appeals
the district court’s grant of the City’s motion to reconsider
as well as the district court’s grant of summary judgment
against him on all of his § 1983 and § 1981 claims.
6 No. 03-2127
II.
We review the district court’s grant of summary judgment
de novo. Dykema v. Skoumal, 261 F.3d 701, 704 (7th Cir.
2001). This standard applies when cross motions for
summary judgment are filed. Metro. Life Ins. Co. v. Smith,
297 F.3d 558, 561 (7th Cir. 2002). To succeed on a motion
for summary judgment, the moving party must show that
there is no genuine issue of material fact and that it is en-
titled to judgment as a matter of law. FED. R. CIV. P. 56(c);
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In making
this determination, “we draw all reasonable inferences from
the evidence in the light most favorable to the nonmoving
party.” Williamson v. Ind. Univ., 345 F.3d 459, 462 (7th Cir.
2003).
A.
A municipality is liable under § 1983 when a deprivation
of constitutional rights is caused by a municipal policy or
custom. Monell v. N.Y. City Dept. of Soc. Servs., 436 U.S.
658 (1978). Such liability may be demonstrated in three
ways: (1) by an express policy that, when enforced, causes
a constitutional deprivation; (2) by a widespread practice
that, although not authorized by written law or express
municipal policy, is so permanent and well-settled as to
constitute a custom or usage with the force of law; or (3) by
a showing that the constitutional injury was caused by a
person with final policymaking authority. Baskin v. City of
Des Plaines, 138 F.3d 701, 704-05 (7th Cir. 1998).
Franklin argued to the district court that the City vio-
lated § 1983 for four reasons: (1) it denied him procedural
due process; (2) it violated his liberty interest in his repu-
tation; (3) it violated a liberty interest arising from Illinois
state law; and (4) it denied him equal protection of the laws
because Evanston’s policy of using arrest records in dis-
charging employees is inherently racially discriminatory.
No. 03-2127 7
The district court initially granted summary judgment to
Franklin on the first aspect of his § 1983 claim but granted
summary judgment to the City on the latter three. Upon
reconsideration, the district court reversed itself and
granted summary judgment to the City on the first aspect
of Franklin’s § 1983 claim as well, because the court found
that Witt, to whom the injury had been ascribed, did not in
fact have final policymaking authority.
1.
In keeping with our decision in Atwell, the district court
found that the City was required either to warn Franklin
that he had immunity for any statements made during the
disciplinary hearing (in which case he would be required to
answer questions), or to continue Franklin’s suspension
without pay until Franklin’s criminal case had been resolved.
Although the district court noted that there appeared not to
be an official policy with respect to the need for Atwell
warnings, it declined to infer that there was an express
policy to disregard the right to Atwell warnings. The district
court (at least initially) imputed § 1983 liability to the City
on the basis that Witt was a final policymaker with the
authority to draft rules governing firing decisions and the
procedures to be used in firing employees. However, upon
reconsideration, the district court reversed itself on the
issue of Witt’s status as a final policymaker.
The relevant policy here is the City’s policy, or lack thereof,
with respect to providing Atwell warnings to employees
threatened with discharge. At oral argument on appeal,
counsel for the City admitted the existence of a City policy
that we find to be in violation of Atwell. Specifically, the
City conceded that it had interpreted the line of cases lead-
ing up to Atwell in an exceedingly narrow manner, deter-
mining that Atwell warnings did not need to be provided
unless the employee was literally told “to speak or face the
8 No. 03-2127
loss of his job for exercising his right not to speak.” (City’s
Br. at 15.) The City also admitted that it had consulted an
attorney with respect to the circumstances in which Atwell
warnings are required and that Franklin was, based on
advice of counsel, not provided with any such warnings. In
addition, the City argued that such warnings were unneces-
sary because Atwell was decided after Franklin’s disciplin-
ary hearing and termination. (See also Letter to the Court
from counsel for the City of Evanston, February 23, 2004.)
We believe that the district court correctly found Atwell
applicable here, because Franklin was in precisely the position
addressed by Atwell. Pursuant to an express policy as stated
by its appellate counsel, the City refused to continue Frank-
lin’s disciplinary hearing until after his criminal case was
resolved, and the City asked Franklin to respond at the hear-
ing to the criminal charges against him without advising
him that his responses could not be used against him in his
pending criminal proceedings. Franklin was thus effectively
forced to choose between his job and his Fifth Amendment
rights, and this was an impermissible violation of his
Fourteenth Amendment right to procedural due process.3
The City’s argument that Atwell warnings were not re-
quired because Atwell was decided after Franklin’s disciplin-
ary hearing gets it nowhere fast. “[A]s a general proposition,
a federal court applies the law in effect at the time it
renders its decision.” Chowaniec v. Arlington Park Race
Track, Ltd., 934 F.2d 128, 131 (7th Cir. 1991); see also EEOC
v. Vucitech, 842 F.2d 936, 941 (7th Cir., 1988) (“Judicial
3
The district court found, and we agree, that Franklin had a
protectible property interest in his job because he was a govern-
ment employee whose employment could be terminated only “for
cause.” (11/19/02 Order at 8 (citing, inter alia, Cleveland v. Bd. of
Educ. v. Loudermill, 470 U.S. 532, 538 (1985); Sonnleitner v. York,
304 F.3d 704, 711 (7th Cir. 2002)).)
No. 03-2127 9
decisions normally are retroactive; that is, they apply to
conduct that occurred before the decision was rendered.”).
Thus, the fact that Atwell was decided in 2002 and Franklin’s
termination took place in 1997 is not determinative. We
find that the district court erroneously granted summary
judgment to the City upon its reconsideration of Franklin’s
procedural due process claim under § 1983 based on its
determination that Witt was not a final policymaker and on
its earlier finding that the City did not have an express
policy to omit Atwell warnings. Now, however, the City,
through counsel, has admitted its express policy of not pro-
viding Atwell warnings to employees such as Franklin.4
2.
Franklin next argues that he had a protectible liberty in-
terest in his reputation, which was violated when the City
allegedly publicized the reasons for his termination and
included that information in his personnel file. However,
the district court found that “[t]he undisputed facts show
that the only disclosure of the information came through its
release in the EVANSTON REVIEW, and that Franklin was
able to obtain subsequent employment after being ter-
minated.” (11/19/02 Order at 8 n.5.) Thus, the district court
found that Franklin had failed to “create an issue of fact as
to either the public disclosure of the alleged stigmatizing
information or the tangible loss of other employment oppor-
4
Because we find that the district court erroneously granted
summary judgment to the City on Franklin’s § 1983 claim for de-
nial of procedural due process, we decline to address whether it
erred in granting the City’s motion to reconsider this issue. Addi-
tionally, because we find that the City had an express policy of
failing to provide Atwell warnings in situations where they were
required, we decline to address whether Witt and/or Edwards
were policymakers with final policymaking authority.
10 No. 03-2127
tunities.” (Id.) Franklin points to no evidence that the City
publicly disseminated the reason for his termination, and
the fact that his coworkers discussed Franklin’s arrest and
his subsequent termination does not fill the gap. Since
Franklin fails to show that the City “disseminated the
stigmatizing information in a manner which would reach
future potential employers of the plaintiff or the community
at large, [he] cannot show that the defendant[’s] actions
impinged on [his] liberty interest in pursuing [his] occupa-
tion.” Ratliff v. City of Milwaukee, 795 F.2d 612, 627 (7th
Cir. 1986). The inclusion of information in his personnel file
regarding his arrest is similarly insufficient to make out a
claim. See Johnson v. Martin, 943 F.2d 15, 17 (7th Cir.
1991) (“The plain fact is that the mere existence of damag-
ing information in Johnson’s personnel file cannot give rise
to a due process challenge.”); Clark v. Maurer, 824 F.2d 565,
567 (7th Cir. 1987).
3.
Franklin’s third claimed violation of § 1983 was predi-
cated on the deprivation of a liberty interest protected by
the Illinois Human Rights Act, 775 I.L.C.S. 5/2-103, which
Franklin interprets as prohibiting an employer from in-
quiring into or using the fact of an arrest as a basis to dis-
charge an employee.5 Although state statutes may create
5
The Illinois Human Rights Act states that “it is a civil rights
violation for any employer . . . to inquire into or to use the fact of
an arrest or criminal history record information ordered expunged,
sealed or impounded . . . as a basis . . . to act with respect to . . .
discharge [or] discipline . . . .” 775 I.L.C.S. 5/2-103(A). This language
is unclear whether the requirement of having been expunged,
sealed or impounded applies to arrests or only to criminal history
record information, and the courts of Illinois have never had
(continued...)
No. 03-2127 11
liberty interests that can implicate the Fourteenth
Amendment if a person is deprived of them without due
process, White v. Olig, 56 F.3d 817, 821 (7th Cir. 1995),
Franklin provides insufficient support for his argument why
this particular state statute creates such a liberty interest.
Franklin asserts that the procedural guarantees of the
Illinois Human Rights Act are “no less compelling” than
those of prisoner cases, and that wrongful deprivation of
employment is a “similarly severe” violation of due process
as the risk of convicting an innocent person. (Franklin’s Reply
Br. at 18, 19.) However, we fail to see how Franklin’s claimed
violation of Illinois’s prohibition against using an arrest as
a basis for discharging employees could amount to a due
process violation implicating a liberty interest protected by
the federal constitution.
Moreover, Franklin did not show that the City had actu-
ally violated the Illinois Human Rights Act by relying on
his arrest as a basis for his discharge. The district court
found that “the evidence is undisputed that it was not be-
cause Franklin had an arrest or an arrest record that he
was fired.” (11/19/02 Order at 15.) Rather, the district court
found that Franklin’s discharge was based on the City’s
determination that Franklin had violated a City work rule
5
(...continued)
occasion to decide this particular issue. We note that an advocacy
group has interpreted this provision of the Illinois Human Rights
Act to be inapplicable to arrest records that were not expunged,
sealed or impounded. National H.I.R.E. Network Legal Action
Center, “Policy Recommendations to Support the Successful Re-entry
of Former Offenders Through Employment,” available at http://
www.hirenetwork.org/pdfs/Illinois%20Policy%20Recommendations.
pdf (last visited August 31, 2004). For the purposes of this appeal,
however, and lacking any indication from the Illinois courts to the
contrary, we will adopt Franklin’s interpretation of the statute,
because both the City and the district court accepted it without
challenge.
12 No. 03-2127
prohibiting possession of controlled substances. Franklin does
not provide us with any basis for finding that this factual
determination is incorrect, and we will not disturb it. Thus,
the district court correctly granted summary judgment to
the City on this aspect of Franklin’s § 1983 claim.
4.
Franklin’s fourth claimed violation of § 1983 is an equal
protection claim under the Fourteenth Amendment. Franklin
argues that the City’s use of arrest records in terminating
employees has a disparate impact on African-Americans
because a higher percentage of them have arrest records.
However, Franklin presents no evidence that the City has
a policy of using arrest records in disciplining employees,
and we have already affirmed the district court’s finding
that Franklin’s own termination was not based on his ar-
rest. Moreover, to make out a prima facie case for an equal
protection violation, Franklin may not rely on a disparate
impact claim but must show that the City acted with dis-
criminatory intent. Anderson v. Cornejo, 355 F.3d 1021, 1024
(7th Cir. 2004); McPhaul v. Bd. of Comm’rs of Madison
County, 226 F.3d 558, 564 (7th Cir. 2000); Greer v. Amesqua,
212 F.3d 358, 370 (7th Cir. 2000). The district court found
that Franklin made no such showing, and Franklin again
provides no reason for us to disturb this finding on appeal.
Thus, the district court correctly granted summary judg-
ment to the City on this fourth aspect of Franklin’s § 1983
claim.
B.
Franklin also claims that the City discriminated against
him on the basis of his race in violation of 42 U.S.C. § 1981.
He advances both disparate treatment and disparate impact
theories. Finding that Franklin had failed to show that
No. 03-2127 13
there were similarly situated Caucasian employees who
were not discharged, the district court granted summary
judgment to the City on Franklin’s disparate treatment
claim. As for Franklin’s disparate impact claim, the district
court found that § 1981 requires intentional discrimination,
and a § 1981 claim is not sufficiently supported by proof of
a disparate impact. The district court therefore granted
summary judgment to the City on Franklin’s disparate
impact claim.
1.
In order to make out a disparate treatment claim,
Franklin must show that (1) he was a member of a pro-
tected class; (2) he was performing according to Evanston’s
expectations; (3) he suffered an adverse employment action;
and (4) similarly situated Caucasian individuals were
treated more favorably. Bratton v. Roadway Package Sys.
Inc., 77 F.3d 168, 176 (7th Cir. 1996). The district court
found that Franklin had established the first three factors,
but that he had failed to establish that there was a sim-
ilarly situated Caucasian employee who had been treated
more favorably. (11/19/02 Order at 17-18.)
To show that he is situated similarly to a Caucasian em-
ployee, Franklin must show that he is “similarly situated
with respect to performance, qualifications and conduct.”
Snipes v. Illinois Dept. of Corr., 291 F.3d 460, 463 (7th Cir.
2002). This similarly situated employee must be “directly
comparable . . . in all material respects.” Patterson v. Avery
Dennison Corp., 281 F.3d 676, 680 (7th Cir. 2002). Factors
courts consider in determining whether two employees are
similarly situated include whether the employees shared
the same supervisor, whether they were subject to the same
standards and whether they “had engaged in similar
conduct without such differentiating or mitigating circum-
stances as would distinguish their conduct or the employer’s
14 No. 03-2127
treatment of them.” Snipes, 291 F.3d at 463 (quoting Radue v.
Kimberly-Clark Corp., 219 F.3d 612, 617-18 (7th Cir. 2000)).
On appeal, Franklin asserts that Timothy Hartigan, a
Caucasian employee who had been arrested for DUI in 1996
but was not discharged, was a similarly situated employee.
Both DUI and the possession of a small amount of mari-
juana are misdemeanor offenses under Illinois law. 720
I.L.C.S. 550/4 (criminalizing possession of more than 10
grams but not more than 30 grams of any substance con-
taining cannabis as a Class A misdemeanor); 625 I.L.C.S.
5/11-501 (criminalizing DUI as, at minimum, a Class A
misdemeanor, depending on the other facts and circum-
stances involved). However, the fact that the City did not
discharge three African-American employees who had also
been arrested for DUI—Walter Parham, Edgar Walker and
William McPherson—indicates that, rightly or wrongly, the
City simply treats DUI less harshly than the possession of
marijuana. This does not amount to unlawful discrimina-
tion. See Millbrook v. IBP, Inc., 280 F.3d 1169, 1175 (7th
Cir. 2002) (finding that a pretext for discrimination “means
something worse than a business error”) (quoting Clay v.
Holy Cross Hosp., 253 F.3d 1000, 1005 (7th Cir. 2001)).
Moreover, as the City points out, Hartigan and Franklin
had different supervisors, and, according to the City’s
disciplinary procedures, the employee’s supervisor decides
on the level of discipline. These are sufficient reasons to
support a finding that Hartigan and Franklin were not sim-
ilarly situated. Thus, the district court correctly granted
summary judgment to the City on Franklin’s disparate
treatment claim under § 1981.
2.
Franklin also argues that the City terminated him because
he was arrested for possession of marijuana, and that the
No. 03-2127 15
use of arrests in employment decisions has a disparate im-
pact on African-Americans in violation of § 1981. But even
assuming arguendo that Franklin was terminated pursuant
to an “arrest verboten” policy of the City rather than
because the City determined that he had violated a work
rule that prohibited the possession of illegal drugs, Franklin
still fails to make out a claim. Franklin argues that, since
equal protection claims and § 1981 claims are analyzed us-
ing the same framework, the district court erred in granting
summary judgment to the City on his disparate impact
claim under § 1981. However, as previously noted, equal
protection claims, like § 1981 claims, require a showing of
discriminatory treatment and cannot be supported by proof
of disparate impact. Thus, Franklin fails as a matter of law
to make out a prima facie case for a violation of § 1981
based on a claim of disparate impact. See Gen. Bldg.
Contractors Ass’n v. United Eng’rs, 458 U.S. 375, 391 (1982)
(“[Section] 1981, like the Equal Protection Clause, can be
violated only by purposeful discrimination.”); Majeske v.
Fraternal Order of Police, Lodge No. 7, 94 F.3d 307, 312 (7th
Cir. 1996) (noting that § 1981 is designed to forbid disparate
treatment, not disparate impact). The district court there-
fore correctly granted summary judgment to the City on
Franklin’s § 1981 disparate impact claim.
III.
On this appeal of the district court’s eventual grant of
summary judgment to the City of Evanston on all of Edward
Franklin’s claims, we are not concerned with whether the
City may have erroneously determined that Franklin had
violated its policy against possessing illegal drugs or, to
that end, whether Franklin may have been vindicated by a
nolle prosequi ending to his criminal case. Our concern is
that in determining that Franklin had violated a City
policy, the City did not provide him with a meaningful op-
16 No. 03-2127
portunity, as required by Atwell, to present his side of the
story without fear of impairing his criminal defense. This
was a violation of Franklin’s right to procedural due process.
Because it occurred pursuant to an express City policy that
skirted the need for Atwell warnings, the City is liable for
a violation of § 1983.
For the reasons set out above, we REVERSE the district
court’s grant of summary judgment to the City of Evanston
on Franklin’s § 1983 procedural due process claim, and we
AFFIRM the district court’s grant of summary judgment to
the City on Franklin’s other claims. We REMAND this case
to the district court for further proceedings in accordance
with this opinion.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—9-27-04