In the
United States Court of Appeals
For the Seventh Circuit

No. 00-4261

Joseph L. Simmons,

Plaintiff-Appellant,

v.

Chicago Board of Education,

Defendant-Appellee.

Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 97 CV 5451--John W. Darrah, Judge.

Argued September 25, 2001--Decided May 10, 2002



  Before Rovner, Diane P. Wood, and Evans,
Circuit Judges.

  Diane P. Wood, Circuit Judge. Joseph
Simmons became the first African-American
treasurer of the Chicago Board of
Education in October 1995, shortly after
his unsuccessful run for city alderman.
Less than nine months later he was
demoted. He sued the Board claiming that
his demotion was illegally based on his
race and political activities. The Board
counters that it terminated Simmons
essentially for micromanaging his office,
in direct contravention of the orders of
his supervisor. The district court found
that Simmons had produced no evidence
that the Board’s stated reason was
pretextual and therefore granted its
motion for summary judgment. We agree
that Simmons has not produced enough to
demonstrate a genuine issue of fact about
pretext and therefore affirm.

I

  Simmons was hired as treasurer in
October 1995. His immediate supervisor
was the Board controller, Andrew
Gilchrist. Above Gilchrist in the chain
of command were chief fiscal officer Ken
Gotsch and chief executive officer Paul
Vallas. As treasurer, Simmons supervised
five separate divisions, including the
Investments Division, which was
responsible for investing Board funds.
Actual trades were normally made by the
lead trader, Pam Jurgensen, who reported
directly to Simmons. On any given day,
Board traders conducted between five and
100 transactions.

  Earlier in 1995, Simmons had mounted an
unsuccessful race for Chicago alderman
against 18th Ward incumbent Thomas
Murphy. A week after Simmons was hired,
Murphy called Vallas to complain about
the selection. The gist of Murphy’s
complaint was that Simmons had illegally
posted signs throughout the 18th Ward
during the period leading up to the
election and then had not removed them
afterwards. This oversight cost the
taxpayers money, since city workers had
to devote time to taking down those
signs. Murphy thought this indicated that
Simmons would not make a fiscally
responsible treasurer. Vallas informed
Murphy that he was unaware of Simmons’s
campaign and expressed surprise that he
had not learned of this fact during the
interview and application process. In
fact, Simmons had disclosed his
aldermanic campaign to Gotsch and
hisdeputy, Charles Burbridge, but that
information apparently was not passed
along to Vallas. Vallas later informed
Simmons at a public meeting of the Board
that "Alderman Murphy is not a big fan of
yours." In addition, sometime after
Simmons was demoted, Vallas bumped into
Murphy at City Hall and mentioned that
Murphy had been correct about Simmons.

  Frictions developed within the
treasurer’s office soon after Simmons was
hired. Jurgensen at times refused to
cooperate with Simmons and told him that
she had never worked for an African-
American before. Simmons complained to
his superiors that Jurgensen was
initiating trades that contradicted Board
policy and his weekly planning
directives. Gotsch did not respond to
these complaints with any action against
Jurgensen. Simmons also hosted an off-
site office Christmas party, leaving only
one worker to cover phones. This
infuriated City Treasurer Miriam Santos,
who used the incident as an excuse to
argue that she (as ex officio treasurer
of the Board) needed more direct
supervision of the Board Treasury
Department. Vallas agreed to move
Jurgensen and two other white employees
from the Board’s Pershing Road facility
to City Hall.

  One of Simmons’s primary
responsibilities was to help implement
the trading and investment portions of a
new Investment Policy that Vallas had
pushed through soon after taking the helm
at the Board. Under the policy, the
treasurer is "responsible for all
transactions undertaken and shall
establish a system of controls." The
policy lists specific investments and
trades that require advance approval from
the chief fiscal officer and also states
that "the investment authority rests with
the Chicago Public Schools as delegated
by the Chief Fiscal Officer."

  In order to carry out that task, Simmons
developed a new system of controls for
trades, under which he demanded that
treasury staff receive pre-approval for
all transactions either at regular
strategy meetings or by telephone prior
to consummating an individual trade. For
the traders, this meant the onerous task
of notifying Simmons prior to the
execution of any of the up to 100 trades
each day. This in turn put the Board at
the risk of losing money when the market
moved during the often lengthy delays.

  On April 8, 1996, Burbridge wrote a memo
clarifying Simmons’s role in approving
trades. The memo stated that "The
investment policy does not require the
Treasurer to approve each individual
trade in a security prior to its
execution. Subordinate employees are
expected to execute trades in accordance
with strategies. The Treasurer is
expected to monitor their activity
retrospectively as part of the system of
controls regulating investments to insure
compliance with the strategy and policy .
. . . The Treasurer is not involved in
actual trading." The memo also warned
that failure to comply would result in
disciplinary action.

  Simmons responded with a memorandum to
Gotsch, Burbridge, and Gilchrist that
laid out his concerns with the
"interpretation of the Investment Policy,
the recent investment approval pattern
and practice, and the [April 8] memo."
Simmons indicated that he understood the
authority Gotsch had delegated to him,
basically reciting from the April 8 memo,
but he also sought to justify his system
of prior controls. He expressed confusion
about how his system could have
contributed to the alleged problems in
the timely execution of trades and noted
that he had at times denied approval for
trades he viewed as inconsistent with the
Investment Policy. He alluded to the need
for his tight controls to prevent
possible bankruptcy, although he
neverexplicitly stated that he would not
comply with Burbridge’s directive.

  Notwithstanding his opinion that the
criticism of his system was ill-advised
or ill-informed, Simmons claimed that
after he received Burbridge’s memo, he
took a completely hands-off approach to
trading. Gotsch, Burbridge, and Gilchrist
remembered things differently; they
claimed that Simmons ignored the memo and
continued to delay and prevent trades,
resulting in further loss of funds to the
Board. Effective June 20, 1996, Simmons
was demoted to a policy analyst position;
he was replaced by a white female. A year
later, the treasury staff, who had been
moved to City Hall, returned to the
Treasurer’s new location.

II

  We review the district court’s grant of
summary judgment de novo. Johnson v. Zema
Sys. Corp., 170 F.3d 734, 742 (7th Cir.
1999). All reasonable inferences will be
drawn in favor of the party opposing the
motion, and that party may attempt to
clarify or augment (but not contradict)
prior deposition testimony through
affidavits. Maldonado v. U.S. Bank, 186
F.3d 759, 769 (7th Cir. 1999). Simmons
asserts that the district court erred in
refusing to consider certain facts stated
in his affidavit. We need not explicitly
resolve this dispute, since we are
reviewing the judgment de novo and will
consider Simmons’s affidavit to the
extent it does not contradict other
evidence in the record. See Russell v.
Acme-Evans Co., 51 F.3d 64, 67 (7th Cir.
1995).

  To prevail on his race discrimination
claim, Simmons must show either direct
evidence of discriminatory motive or
intent or rely on the indirect burden-
shifting method outlined in McDonnell
Douglas v. Green, 411 U.S. 792 (1973).
Simmons has focused on the McDonnell
Douglas approach. This means that Simmons
must present evidence tending to show:
(1) he was a member of a protected class;
(2) he was meeting his employer’s
legitimate job expectations; (3) he
suffered an adverse employment action;
and (4) similarly situated employees not
in the protected class were treated more
favorably. Id. at 802. If he meets this
burden, the Board must provide a
legitimate, nondiscriminatory reason for
his demotion. At that point, the burden
returns to Simmons to present evidence
that the reasons offered by the Board are
actually a pretext for discrimination.
Id. at 804.

  The district court found that Simmons
had failed to establish either that he
was meeting the Board’s legitimate
expectations or that similarly situated
employees were treated more favorably. In
our review of this decision, we will
assume for the sake of argument that
Simmons has met his initial burden and
pass directly to the question of pretext.
Rummery v. Illinois Bell Tel. Co., 250
F.3d 553, 556 (7th Cir. 2001). We make
this assumption not because we are
convinced that Simmons has established a
prima facie case, but because the issue
of satisfactory job performance, which
lies at the heart of this dispute, must
be analyzed in detail at both stages of
the McDonnell Douglas test and it is
therefore simpler to run through that
analysis only once. See Gordon v. United
Airlines, Inc., 246 F.3d 878, 886 (7th
Cir. 2001).

  The Board has certainly produced
evidence of a legitimate,
nondiscriminatory reason for Simmons’s
demotion: its dissatisfaction with
Simmons’s policy of pre-approval of all
trades and his subsequent insubordinate
failure to comply with Gotsch’s directive
to change that policy. Simmons must
therefore show that the Board’s reason is
pretextual, which he can do either by
pointing to a discriminatory reason that
more likely motivated the Board or by
demonstrating that the proffered
explanation is not worthy of belief. Debs
v. Northeastern Ill. Univ., 153 F.3d 390,
395 (7th Cir. 1998).

  Simmons has offered no evidence that
race discrimination is what was really
motivating the Board. He claims that
because Jurgensen stated that she had
never worked for an African-American
before and complained about him
constantly to his superiors, her racial
animus somehow infected the decision to
replace him. But statements by
nondecisionmakers cannot satisfy a
plaintiff’s burden of proving
discrimination, Larimer v. Dayton Hudson
Corp., 137 F.3d 497, 500 (7th Cir. 1998),
and Simmons offers nothing but
speculation to connect Jurgensen’s views
with the actions of the ultimate
decisionmakers. Simmons also claims in
his affidavit that he "and others"
believed Burbridge was a racist, but he
offers no support for this other than
assertion. One of his own witnesses,
Bennett Currie, stated that some Board
employees who were treated better were
white, but others belonged to racial
minorities. Tellingly, Simmons himself
believed that Gotsch and Vallas, the two
men responsible for his demotion, were
not prejudiced against him because of his
race. Finally, Simmons cites as evidence
the fact that three white employees were
transferred out of his office and
returned a year after he left. But
Simmons admitted the transfer was
madebecause the City Treasurer requested
more direct supervision over the Board’s
trading staff, a decision she was
entitled to make as ex officio treasurer
of the Board; once again, this falls far
short of evidence tending to indicate
that Simmons’s race played any role in
the move.

  Simmons’s only other hope of proceeding
is to point to evidence showing that the
Board’s claim that he was demoted for
insubordination is unworthy of belief.
Despite Simmons’s continued insistence
that he had to approve trades as a fiscal
duty to the Board, the Investment Policy
is clear that it is Gotsch as chief
fiscal officer, and not Simmons, who has
ultimate investment authority. Gotsch was
perfectly within his rights to determine
that Simmons’s approval of individual
trades was both unnecessary and wasteful,
delaying the timely execution of trades
and distracting Simmons from the broader
policy and strategic goals the Board
wanted its treasurer to implement.

  The only evidence Simmons has offered to
contest the Board’s accusation is his own
affidavit. Simmons claims that he did
comply with the April 8 memo by
thereafter taking a hands-off approach to
trading. But it is unclear why this
affidavit, standing alone, should
persuade a trier of fact that Gotsch’s
version of events, supported by Vallas,
Burbridge, and Gilchrist, is unworthy of
belief. And it is worth recalling that
what matters is Gotsch’s confidence that
Simmons would follow the more supervisory
policy Gotsch envisioned: it does not
matter if Simmons himself knew that he
meant to toe the line in the future, if
Gotsch genuinely believed he would not.
See Olsen v. Marshall & Ilsley Corp., 267
F.3d 597, 602 (7th Cir. 2001) (issue is
not whether employer’s evaluation of
employee was correct but whether it was
honestly believed). Simmons also notes
that neither Gotsch nor Burbridge
responded to his reply memo, which he
characterizes as a request for
clarification. Gotsch and Burbridge may
not have seen it as such, however; the
reply states only that Simmons understood
the Board Investment Policy and knew that
he was not to require prior approval of
trades. It is unclear what in these
statements was intended to serve as a
request for clarification. On the other
hand, the memo expresses Simmons’s strong
disagreement with Gotsch’s interpretation
of the policy, which may have further
weakened his supervisors’ confidence that
Simmons would do as they wished.

  Simmons’s admitted prior policy of
micromanagement, which slowed down Board
trades and risked significant monetary
loss, combined with the tone of the
memorandum itself and Simmons’s later
deposition testimony that he felt he was
ultimately responsible to the Board (as
opposed to Gotsch) for his trading and
investment decisions amount to strong
evidence on the Board’s side of a
nondiscriminatory reason why Gotsch might
have removed him from the treasurer
position. On the other hand, Simmons has
produced no written documentation or
testimony from other Treasury employees
to cast any doubt on the Board’s charges,
and the tone of his reply memo, which
argued among other things that his
controls were necessary to prevent
bankruptcy, causes us to question exactly
what Simmons means by a "hands off
approach." Under these circumstances, he
has shown no evidence of pretext, and the
district court’s grant of summary
judgment to the Board was proper.

III

  Simmons also contends that the Board
violated his civil rights under 42 U.S.C.
sec. 1983 because it demoted him in
retaliation for his run for alderman. A
municipal agency such as the Board can be
liable under sec. 1983 for violating a
person’s civil rights through: (1) an
express municipal policy; (2) a
widespread practice constituting custom
or usage; or (3) a constitutional injury
caused or ratified by a person with final
policymaking authority. Kujawski v. Board
of Commissioners, 183 F.3d 734, 737 (7th
Cir. 1999); City of St. Louis v.
Praprotnik, 485 U.S. 112, 127 (1988)
(opinion of O’Connor, J.). However,
liability requires more than the fact
that a low level supervisor took some
action that was not later reversed by a
policymaker. Compare Praprotnik, 485 U.S.
at 130. One way or another, the policy
must be shown to be that of the
municipality itself. See McMillian v.
Monroe County, 520 U.S. 781, 784 (1997);
Gernetzke v. Kenosha Unified Sch. Dist.
No. 1, 274 F.3d 464, 468 (7th Cir. 2001).
In this case, the parties agree that
final policymaking authority rested with
Vallas. See 105 ILCS 5/34-3.3. The
district court concluded that the
undisputed evidence showed that Vallas
neither caused nor ratified the decision
to demote Simmons.

  This case differs somewhat from the
typical ratification fact pattern.
Normally, the plaintiff alleges that her
immediate supervisor has
unconstitutionally muzzled her free
speech through a demotion or termination,
and the defendants rely on the fact that
no higher level individuals were aware of
the unconstitutional basis of that job
action. See Kujawski, 183 F.3d at 736;
Praprotnik, 485 U.S. at 117. Here, in
contrast, Simmons is indeed arguing that
the higher level policymaker, Vallas, had
an unconstitutional motive for dismissing
him. Therefore, if there is any evidence
indicating that Vallas played a role in
Simmons’s demotion and acted
unconstitutionally, a trial would be
necessary to determine whether the Board
was liable for his actions.

  The district court found that Simmons
had produced no evidence that Vallas
played a role in the demotion, and that
Gotsch alone made the decision. This
conclusion, in our view, overstates the
matter. First, Vallas was well aware of
the decision to hire Simmons and his
placement in a high profile position.
Within a week of Simmons’s hiring, Vallas
had ordered his public relations
department to research news reports on
Simmons’s aldermanic campaign and had
directed Simmons to prepare a memo
listing his qualifications. Thus, unlike
Praprotnik or Kujawski, where ranking
policymakers argued they were entirely
unaware of the alleged speech activities
of a low-level employee, Vallas had full
knowledge of Simmons’s political forays.

  Vallas also issued the order to move
members of Simmons’s staff to City Hall
after the Christmas party incident, an
incident that Gotsch thought was blown
out of proportion by Vallas and Santos.
This action again shows fairly direct
involvement by Vallas in basic personnel
decisions within the Treasury Department
and casts doubt on his claims of complete
deference to Gotsch on such matters.
Finally, Vallas admitted that all final
personnel actions had to be approved by
him and that he had an active role in
creating the new policy analyst position
to which Simmons was transferred after he
was dismissed as treasurer. Such evidence
would clearly permit a jury to find that
Vallas was involved enough in the
transfer action to have had the
opportunity to visit a constitutional
injury on Simmons, and the district
court’s finding that Gotsch must have
fired Simmons on his own authority is
therefore error.

  That, however, does not save the day for
Simmons. He still must make out a prima
facie case of political motivation by
proving "that his conduct was
constitutionally protected, and that the
protected conduct was a substantial
factor in the decision to transfer him."
Garrett v. Barnes, 961 F.2d 629, 632 (7th
Cir. 1992); see also Mt. Healthy City Bd.
of Ed. v. Doyle, 429 U.S. 274, 287
(1977). If he can do so, the Board may
still prevail by showing by a
preponderance of the evidence that there
was a legitimate non-political reason for
his termination. Nelms v. Modisett, 153
F.3d 815, 818 (7th Cir. 1998). There is
no dispute that running for political
office is an activity protected by the
First Amendment, but to survive summary
judgment Simmons must present evidence
that his campaign against Murphy was a
substantial factor in his ouster.

  Simmons has little to point to in
support of his claim that Vallas demoted
him for his political activities. First,
in response to Murphy’s phone call,
Vallas ordered Simmons to compose a memo
listing his qualifications as treasurer,
and Simmons feels this response reflected
a lack of support for the new treasurer.
Under the circumstances, however,
Vallas’s action seems like a perfectly
reasonable attempt to head off a
potential attack by an influential city
politician against a newly hired
employee. Furthermore, Vallas permitted
Simmons himself to draft the memo, and
Simmons does not contend that his
qualifications or lack thereof had any
role in the demotion decision eight
months later.

  The only other evidence Simmons points
to are three comments made by Vallas. The
first occurred at a public Board meeting
where Vallas, upon being introduced to
Simmons, announced "Alderman Murphy is
not a big fan of yours." Simmons says
this remark made him uncomfortable and
embarrassed, but it is impossible to
infer that Vallas’s utterance of this
understatement veiled some determination
that Vallas would later use this fact to
remove Simmons from his job. In his
second comment, made three months after
Simmons was removed, Vallas announced in
a meeting that he would remove any
employee "not doing their job . . . even
if they are Joe Simmons." This statement
too provides no evidence that Vallas
removed Simmons for his aldermanic run.
In fact, it bolsters a conclusion that
Vallas removed Simmons for
insubordination and was willing to take
the flak for that decision. The final
statement is a passing remark Vallas made
to Murphy sometime after Simmons’s
demotion, in which Vallas indicated that
Murphy had been right about Simmons. But
this comment merely proves that Vallas
now concurred with Murphy that Simmons
had not made a good treasurer and offers
no indication as to why Simmons failed to
make the grade.
  In cases where plaintiffs have prevailed
on political motivation claims, they have
offered far more evidence than this, such
as a pattern of decisions based on
political factors, Felton v. Board of
Comm’rs, 5 F.3d 198, 201 (7th Cir. 1993),
or direct testimony from someone other
than the plaintiff that the defendant
wanted to rid the division of a political
opponent. Nekolny v. Painter, 653 F.2d
164, 168-69 (7th Cir. 1981). Vallas was
aware of Simmons’s political activities
eight months before the demotion, and
Gotsch, whom Simmons admits was also
involved, knew of the campaign when he
hired Simmons. Cf. McClure v. Cywinski,
686 F.2d 541 (7th Cir. 1982) (defendant
prevailed despite his comments several
months earlier that plaintiff should not
be so politically active or he would "get
rid of him later.").

  Finally, even if Simmons could make out
a prima facie First Amendment claim, the
Board has offered a legitimate,
nondiscriminatory reason for his
demotion--his refusal to comply with
Gotsch’s directives and continued
interference with daily trading
activities. As we noted in our discussion
of Simmons’s race discrimination claim,
supra at 7, Simmons has offered no
evidence other than his own affidavit to
contradict the legitimacy of the Board’s
position, and that is clearly
insufficient. For all these reasons, the
district court was correct to grant the
Board summary judgment on Simmons’s First
Amendment claim.

IV

  Simmons has not offered sufficient
evidence to allow a finder of fact to
conclude that the Board dismissed him for
an impermissible reason, rather than
because of his failure to follow a
satisfactory system for executing trades
and his insubordinate refusal to comply
with his supervisor’s directives. We
therefore Affirm the judgment of the
district court.
