01-3814 Nieves v. Bd. Educ. City of Chicago

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“[I]n support of the causation element, Nieves offers only (1) her unsupported allegation that the decision was made after the protected speech and (2) the timing 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 because 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 appear in minutes. Nieves also does not point to any minutes or other notes maintained after the protected speech indicating that the decision was made at that later time. 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 knowledge as to when the decision was made.

“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. … 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 public schools… Because Nieves presented no other evidence to establish causation, the court properly granted summary judgment in favor of the defendants.”

Affirmed.

Appeal from the United States District Court for the Northern District of Illinois, Andersen, J., Rovner, J.