           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                   Fifth Circuit

                                                                            FILED
                                                                        September 10, 2008

                                     No. 08-60178                     Charles R. Fulbruge III
                                   Summary Calendar                           Clerk




VICKIE MCNEILL

                                                  Plaintiff-Appellant
v.

CITY OF CANTON MISSISSIPPI; FRED ESCO, Individually and in his
capacity as mayor of the City of Canton Mississippi; ROBERT WINN,
Individually and in his capacity as chief of the City of Canton Police
Department

                                                  Defendants-Appellees



                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                              USDC No. 3:06-CV-74



Before WIENER, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
       Plaintiff-Appellant Vickie McNeill asks us to reverse the district court’s
summary judgment-dismissal of her claims against her former employer, the
City of Canton, Mississippi (the “City”), the mayor of the City, Fred Esco, and


       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
                                  No. 08-60178

the chief of the Canton Police Department (the “CPD”), Robert Winn
(collectively, the “Defendants-Appellees”). McNeill formerly was employed as
the assistant chief of the CPD and was even appointed interim chief while the
City advertised and filled the vacancy. In this action against the Defendants-
Appellees, she alleges, inter alia, that (1) she was not selected for the chief of
police position because of her sex and in retaliation for her earlier successful
sexual harassment and retaliation suit filed against the City, (2) she was
retaliated against when she was allegedly demoted and eventually fired after
filing her failure-to-promote charge of discrimination with the Equal
Employment Opportunity Commission, (3) her Fourteenth Amendment
substantive and procedural due process rights were violated when she was fired,
and (4) she suffered from intentionally inflicted emotional distress.        The
Defendants-Appellees filed a motion for summary judgment; McNeill objected
and requested that she be granted a Rule 56(f) continuance to conduct additional
discovery. The court denied McNeill’s request for a continuance and granted
summary judgment in favor of the Defendants-Appellees, dismissing each of
McNeill’s claims.
      We have reviewed the record on appeal and the law applicable thereto as
set forth in the appellate briefs of the parties and the rulings of the district
court. As a result of our review, we are convinced that the district court’s grant
of the Defendants-Appellees’ motion for summary judgment was proper,
essentially for the reasons carefully explained at length by the court.
      First, with respect to her failure-to-promote claims, McNeill has not shown
that there is a genuine issue of material fact whether the Defendants-Appellees’
stated legitimate, non-discriminatory reason for her non-selection, viz., that the
City wanted to hire an outsider for the chief of police position, was pretext for




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discrimination.1       In fact, McNeill herself bolstered the legitimacy of the
Defendants-Appellees’ reason for not promoting her when she acknowledged in
her deposition that, in recent years, the CPD had experienced substantial
internal problems because corruption was rampant within the CPD’s ranks.
Second, with respect to her retaliation claims, McNeill has failed, inter alia, to
(1) demonstrate a sufficient causal connection between her protected activity and
the alleged materially adverse employment actions she suffered, and (2) rebut
adequately the Defendants-Appellees’ proffered non-discriminatory reasons for
the materially adverse employment actions.2 Most notably, McNeill makes no
attempt to (1) discredit the Defendants-Appellees’ justification for modifying her
work schedule, viz., to provide more police coverage because the City was short
on manpower at the time, or (2) address the proffered reasons for her
termination, which reasons include her failure to perform her duties and her
refusal to work cooperatively with Chief Winn and others. Third, as McNeill has
not established that she had a property interest in her employment with the
City, her substantive and procedural due process claims must fail.3 Contrary to
her unsupported and conclusional assertion that she was a civil service employee


       1
        See, e.g., Pratt v. City of Houston, Tex., 247 F.3d 601, 606 (5th Cir. 2001) (“[A]n
employer would be entitled to summary judgment if the plaintiff created only a weak issue of
fact as to whether the employer’s reason was untrue and there was abundant and
uncontroverted independent evidence that no discrimination occurred.” (internal quotation
marks omitted)).
       2
         See, e.g., Swanson v. Gen. Servs. Admin., 110 F.3d 1180, 1188 (5th Cir. 1997) (“[O]nce
the employer offers a legitimate, nondiscriminatory reason that explains both the adverse
action and the timing, the plaintiff must offer some evidence from which the jury may infer
that retaliation was the real motive.”); Strong v. Univ. Healthcare Sys., L.L.C., 482 F.3d 802,
806 (5th Cir. 2007) (“The proper standard of proof . . . [for] a Title VII retaliation claim is that
the adverse employment action . . . would not have occurred ‘but for’ [the] protected conduct.”
(citation omitted)).
       3
         See, e.g., Lollar v. Baker, 196 F.3d 603, 607 (5th Cir. 1999) (“To show a due process
violation in the public employment context, the plaintiff must first show that she had a legally
recognized property interest at stake.”).

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                                       No. 08-60178

under Mississippi statutory law and thus had a protected interest in her
employment, the record reveals that she was an at-will employee and therefore
terminable with or without cause. Finally, there plainly is no evidentiary basis
to support her claim for intentional infliction of emotional distress.
         We are also convinced that the district court did not err in refusing to
grant McNeill a Rule 56(f) continuance.4 The record reflects that the court
granted her sufficient time to conduct adequate discovery. Moreover, McNeill
made only vague assertions as to why additional discovery was needed and how
that discovery would have enabled her to establish a genuine issue of material
fact.5
         The district court’s dismissal of this action with prejudice is
AFFIRMED.




         4
         Federal Rule of Civil Procedure 56(f) provides in part that “[i]f a party opposing the
[motion for summary judgment] shows by affidavit that, for specified reasons, it cannot present
facts essential to justify its opposition, the court may . . . order a continuance to enable
affidavits to be obtained, depositions to be taken, or other discovery to be undertaken . . . .”
FED. R. CIV. P. 56(f) (2).
         5
        See Adams v. Travelers Indem. Co. of Conn., 465 F.3d 156, 162 (5th Cir. 2006) (“A
party cannot evade summary judgment simply by arguing that additional discovery is needed,
and may not simply rely on vague assertions that additional discovery will produce needed, but
unspecified facts.” (internal citations and quotation marks omitted)).

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