                              In the
 United States Court of Appeals
                For the Seventh Circuit
                           ____________

No. 02-3862
JAMES PHELAN,
                                               Plaintiff-Appellant,
                                  v.


CITY OF CHICAGO,
                                               Defendant-Appellee.
                           ____________
        Appeal from the United States District Court for the
       Northern District District of Illinois, Eastern Division.
          No. 99 C 40—Ian H. Levin, Magistrate Judge.
                           ____________
 ARGUED SEPTEMBER 12, 2003—DECIDED OCTOBER 21, 2003
                   ____________



  Before BAUER, KANNE and EVANS, Circuit Judges.
  BAUER, Circuit Judge. The plaintiff James Phelan
brought suit after being dismissed from his position of
“ward superintendent” by the City of Chicago. Phelan
claimed that the City 1) violated the Due Process Clause, 2)
breached the Family and Medical Leave Act, and 3) violated
Title VII of the Civil Rights Act. The district court granted
the City’s motion to dismiss Phelan’s first two causes of
action and disposed of the third on summary judgment.
Phelan appeals. We affirm.
2                                               No. 02-3862

                       BACKGROUND
  Phelan was employed in two separate positions by the
City of Chicago. In 1992 he was hired by the City as a police
officer. In October 1993 the Chicago Police Department
granted him a leave of absence. In November 1995, while he
was on leave from the Police Department, Phelan was hired
by the City’s Department of Streets and Sanitation to work
as ward superintendent for the 23rd Ward. Phelan worked
full time as ward superintendent until July 1997 at which
time he took leave because of personal health problems.
Phelan exhausted all of his sick days but was still unable to
return to work. In September 1997, he applied for and was
granted leave under the Family and Medical Leave Act
(“FMLA”).
   In September 1997 Phelan was indicted for mail fraud.
Shortly after his indictment, City personnel requested that
he resign. When he refused to resign, the City fired him.
Phelan’s discharge was processed the same day that he of-
ficially returned from his FMLA leave. On October 27, 1997,
Phelan requested that the City reinstate him to his position
as a probationary police officer. The City notified Phelan
that he no longer had employment with the Police Depart-
ment. Phelan then filed suit.


                         ANALYSIS
  This court reviews the district court’s granting of motions
to dismiss the Due Process and FMLA claims under a
de novo standard of review. See Hickey v. O’Bannon, 287
F.3d 656, 657 (7th Cir. 1999). In reviewing the district
court’s decision, this court must accept all well-pleaded
facts alleged in the complaint as true and must draw all
reasonable inferences in favor of the non-movant.
Lachmund v. ADM Investor Servs., Inc., 191 F.3d 777, 782
(7th Cir. 1999). A motion to dismiss will succeed when “it
No. 02-3862                                                 3

appears beyond doubt that the plaintiff can prove no set of
facts in support of his claim which would entitle him to
relief.” Conley v. Gibson, 355 U.S. 41, 45-46 (1957).
  Similarly, this court reviews the district court’s dismissal
of the Title VII claim via summary judgment de novo. Gray-
son v. City of Chicago, 317 F.3d 745, 749 (7th Cir. 2003). All
facts will be viewed in a light most favorable to the non-
moving party, and summary judgment will be upheld if
there is no genuine issue of material fact. Id.


A. Due Process Claim.
  Phelan claims that the City’s termination of his em-
ployment violated his Fourteenth Amendment Due Process
rights when the departments terminated him from his po-
sitions as ward superintendent and police officer without
notice or a hearing. The Fourteenth Amendment states that
no state shall “deprive any person of life, liberty, or prop-
erty, without due process of law . . . .” U.S. CONST. amend.
XIV, § 1. In order to assert a violation of the Due Process
clause, a plaintiff must be able to show that 1) he or she
had a “property interest” and 2) that he or she was deprived
of this interest without due process of law. Bishop v. Wood,
426 U.S. 341, 343 (1976).
  In the employment context, a property interest can be
created in one of two ways, “1) by an independent source
such as state law securing certain benefits; or 2) by a
clearly implied promise of continued employment.” Shlay v.
Montgomery, 802 F.2d 918, 921 (7th Cir. 1986) (quoting
Munson v. Friske, 754 F.2d 683, 692 (7th Cir. 1985)), Board
of Regents v. Roth, 408 U.S. 564, 577 (1972). Phelan is un-
able to state that he has any interest in his employment
via the first method for creating a property interest. In his
pleadings, Phelan bases his claim to a property interest
on sections 2-100-110 and 2-74-060 of the Municipal Code.
4                                                No. 02-3862

These sections state the applicable procedures for termi-
nation of “career service” employees. Unfortunately for
Phelan, his employment in the capacities of a police officer
and a ward superintendent are not classified as “career ser-
vice” positions; rather they are “exempt” and not entitled to
any procedures for dismissal. R.74 at Exh. K ¶¶3, 5. Spe-
cifically, the Municipal Code distinguishes “career service”
employees and all other “career service exempt” employees.
Municipal Code of Chicago § 2-74-030. Only those employ-
ees in career service are afforded procedural protections for
their employment. Municipal Code of Chicago § 2-74-060.
Hence, Phelan has no property interest in his position that
was created by any state or city law; he was an at will em-
ployee.
  Absent an express agreement, an at will employee may
still prove a property interest in his or her employment un-
der the second test if there is a “clearly implied promise
in their continued employment.” Shlay, 802 F.2d at 921,
Perry v. Sindermann, 408 U.S. 593 (1972). In cases regard-
ing at will employees, in order to demonstrate that there
is an interest, a plaintiff must show more than a “unila-
teral expectation” or an “abstract need or desire” for the
employment. Board of Regents v. Roth, 408 U.S. 564, 577
(1972). In his amended complaint, Phelan asserts that he
was “hardworking, productive, and effective in the posi-
tion of Ward Superintendent” and that he “received favor-
able performance evaluations and merit salary raises.”
Amended Complaint at ¶7. This court has made it clear
that these contentions are not enough to meet the test for
an implied contract. Specifically, in Shlay, we stated that
because the Chicago’s City Code explicitly defines different
categories of employees as “career service” or “career service
exempt,” other City employees cannot make promises,
implied or otherwise, of continued employment that are
contrary to the Code. Shlay, 802 F.2d at 921-22 (discussing
why a “career service exempt” employee of the City of
No. 02-3862                                                   5

Chicago did not have a property interest in his continued
employment). Additionally, this court found that other
factors such as longevity of service, good performance
reviews and periodic salary increases are insufficient to
show a property interest in continued employment. Id. at
922.
  Phelan argues that under the notice pleading standard of
the Federal Rules of Civil Procedure, he need not state facts
to show that he has a property interest in his employment.
This court has noted that, although pleading standards are
relaxed, a plaintiff must still plead “sufficient facts . . . to
allow the district court to understand the gravamen of the
plaintiff’s complaint.” Kyle v. Morton High School, 144 F.3d
448, 455 (7th Cir. 1998) (quoting Doherty v. City of Chicago,
75 F.3d 318, 326 (7th Cir. 1996). Even under the relaxed
standards, Phelan has not met these minimum require-
ments in light of our earlier holding in Shlay. Based on the
pleadings, it is clear that he cannot show any facts to prove
that his Due Process rights were violated.


B. FMLA Claim
 Phelan’s second claim is that his dismissal violates the
FMLA. The district court granted the City’s motion to dis-
miss this claim. We affirm the district court’s ruling.
  Enacted in 1993, the FMLA was designed to allow em-
ployees to take periods of leave from their jobs for various
health and family related reasons. In furtherance of this
goal, the Act allows both for the employee to take leave
and to be reinstated when his or her leave is finished. Spe-
cifically, the Act allows a worker to take unpaid leave for a
period of up to twelve weeks for reasons that include the
birth of a child, the illness of an immediate family member,
or the serious health condition of the employee himself.
29 U.S.C. § 2612(1). Upon return the employee is guaran-
6                                                No. 02-3862

teed reinstatement to the employee’s original position or an
“equivalent position.” 29 U.S.C. § 2614(1). The FMLA, how-
ever, does not entitle any employee to “any right, benefit, or
position of employment other than . . . [that] which the
employee would have been entitled had the employee not
taken leave.” 29 U.S.C. § 1614(3).
  In the case at hand, Phelan elected to take leave under
the FMLA for a period of time from September 12, 1997 to
October 16, 1997. When he returned to work in October, he
was terminated. The City states that prior to Phelan’s
absence, the quality of his work had been poor, and during
his absence the employee hired to fill in for Phelan was
more satisfactory. For these reasons, the City chose to
terminate Phelan.
  In cases such as this where an employee is terminated
while taking FMLA leave, the trial court must determine
whether the termination was illegally motivated by the em-
ployee’s choice to take leave, or whether the termination
was motivated by other, valid reasons. Kohls v. Beverly
Enterprises Wisconsion, Inc., 259 F.3d 799, 804 (7th Cir.
2001). Specifically, we have stated that:
    With no absolute right to reinstatement, whether an
    employer violates the FMLA turns on why the employee
    was not reinstated. Clearly, an employee may not be
    fired because she took leave—that would be in direct
    violation of the statute. However, an employee may be
    fired for poor performance when she would have been
    fired for such performance even absent her leave.
Id. at 805.
  In this case, the distinction is an easy one. Plaintiff con-
cedes that he was terminated because of the poor quality of
his work. Appellant’s Brief at 14-15. The City noted reports
made by superiors that Phelan was not managing his
No. 02-3862                                                 7

assigned ward correctly, that he was unable to work ef-
fectively with others, and that he “simply wasn’t getting
the job done.” Appellant’s Brief, Short Appendix, at 37.
More specifically, the City noted complaints against Phelan
stating that he relied too heavily on employees working
under him, he was difficult to get a hold of via radio or
pager (the normal means to contact ward superintendents),
and he refused to drive the city van during working hours;
Phelan was ultimately suspended for three days due to
similar problems prior to taking his medical leave. Id. at 33-
35. Phelan argues that his termination violates the FMLA
because it was made while he was on FMLA leave. More
specifically, Phelan asserts that the City decided to termi-
nate him for poor performance only after seeing how much
better his temporary replacement could perform his job.
This, Phelan asserts, is an improper motivation for his
termination.
  This court directly addressed a similar situation in Kohls.
In that case, an employee at a nursing home took approxi-
mately two months of leave under the FMLA. Id. at 802.
While the employee was on leave, the nursing home hired
a replacement who performed the job better than the
employee. Id. When the employee returned to work, she was
terminated. Id. This court held that the termination did not
violate the FMLA, specifically noting that:
      . . . [the employer’s] preference for [the replacement]
    does not itself demonstrate that [the employee] would
    not have been terminated if she had not taken leave.
    [The employer] would have been entitled to fire [the
    employee] for mismanagement and mishandling of
    funds regardless of whether she had taken leave or not.
Id. at 806. Put simply, an employee is not afforded greater
rights than he would otherwise have merely because he
takes FMLA leave. Hence, it is not in violation of the FMLA
8                                                No. 02-3862

for the City to dismiss Phelan for poor performance, regard-
less of when the City came to that decision. For this reason,
the district court’s granting of the motion to dismiss was
proper. Phelan failed to allege any facts that, if taken as
true, would constitute a violation of the FMLA.


C. Equal Protection Claim
  Finally, Phelan, a Caucasian man, argues that his dis-
missal violated Equal Protection provided by the Four-
teenth Amendment and § 1983 because the City of Chicago
treated him unfairly due to his race. The district court
granted the City’s motion for summary judgment regarding
this claim.
  Title VII of the Civil Rights Act of 1964 makes it unlawful
for an employer to “fail or refuse to hire or to discharge any
individual . . . because of such individual’s race . . . .”
42 U.S.C. § 2000e-2(a)(1). An employee may show such
incidents of illegal discrimination through direct proof, or
in the absence of such proof, an employee may make a case
with sufficient indirect proof, and upon doing so, switch the
burden of proof to the employer. In this case, Phelan pro-
ceeds with indirect proof.
  The first test developed by the Supreme Court for show-
ing employment discrimination through indirect proof was
established in McDonnell Douglas Corp. v. Green, 411 U.S.
792, 802 (1973). Under that decision, the plaintiff must first
demonstrate facts that build a prima facie case of discrimi-
nation. The prima facie case consists of a showing by the
plaintiff
    (i) that he belongs to a racial minority; (ii) that he ap-
    plied and was qualified for a job for which the employer
    was seeking applicants; (iii) that, despite his qualifica-
    tions, he was rejected; and (iv) that, after his rejection,
    the position remained open and the employer continued
    to seek applicants from persons of complainant’s quali-
    fications.
No. 02-3862                                                      9

McDonnell Douglas Corp., 411 U.S. at 802. Over time,
courts have modified the test to fit a variety of situations.
Recently, the Seventh Circuit modified the test to apply
to situations where members of majority groups believe
they were subject to employment discrimination. Mills v.
Health Care Service Corp., 171 F.3d 450, 457 (1999). This
court noted that in such cases of “reverse discrimination,”
the first prong of the McDonnell test cannot be used. Id. In
its stead, a plaintiff must show “background circumstances”
that demonstrate that a particular employer has “reason or
inclination to discriminate invidiously against whites”or
evidence that “there is something ‘fishy’ about the facts at
hand.” Id. at 455 (quoting Harding v. Gray, 9 F.3d 150, 153
(D.C. Cir. 1993)).
  Phelan argues that this new and different prong imposes
an unfair burden to non-minority plaintiffs since a non-
minority plaintiff must establish more facts to create the
prima facie case. Indeed, this circuit considered that issue
in determining how to modify the McDonnell Douglas test
to fit incidents concerning reverse discrimination. Mills v.
Health Care Service Corp., 171 F.3d 450, 456-57 (7th Cir.
1999). However, this court has recognized that discrimina-
tion by employers against white men is a less common
phenomenon than discrimination against minorities. Id. For
that reason, in order to gain the substantial benefits
conferred by the use of the McDonnell Douglas test,1 the
non-minority plaintiff must be able to plead facts to show
why it is likely in this case, that an employer had engaged
in such unusual behavior. This court stated explicitly that
“this modified test is not to be interpreted in a constricting
fashion . . . [i]t in no way precludes any plaintiff with direct


1
   The McDonnell Douglas test was created to remedy discrimina-
tion against groups that have historically suffered; the test is a
powerful tool to do so because it creates an inference of discrimi-
nation on the part of employers in the absence of direct evidence
of discrimination. Id.
10                                                   No. 02-3862

evidence of discrimination from bringing his claim.” Id. at
457. Hence, Phelan must be able to show direct evidence of
the racial discrimination waged against him, or meet all the
elements of the prima facie case as outlined in Mills.
   Applying this modified prima facie test to the case at
hand, Phelan is unable to demonstrate the necessary “back-
ground circumstances”; that is to say, he does not state that
there is reason to believe his superiors within the City of
Chicago would be inclined to discriminate against white
men. Phelan is a white man; his superiors were white men;
the worker selected by these superiors to replace Phelan
was a white man. Additionally, Phelan cannot show that
there was anything “fishy” about his termination that
would suggest reverse discrimination. The City stated that
an abundance of poor work habits led to his dismissal.
Phelan argues that the City’s proffered reason was false,
and alternatively that he was dismissed because his re-
placement was better than him, or that he was dismissed
because of the criminal indictment levied against him. Even
if Phelan is correct in asserting that the City misrepre-
sented its “real” reason for terminating Phelan in this way,
neither of these alternate theories provide “fishy” circum-
stances that raise an inference of racial discrimination—or
any illegal or improper behavior for that matter.
  Phelan also argues that according to a recent case, Hunt
v. City of Markham, Ill., 219 F.3d 649 (7th Cir. 2000), this
Circuit did not require a showing of unusual background
circumstances. Phelan misunderstands this case. In Hunt,
this court did not apply the McDonnell Douglas test because
the plaintiffs had direct evidence of discrimination,2 and


2
   In their complaint, the plaintiffs stated that the city officials
openly discriminated against them and made such statements as
“it is the blacks’ turn to self-govern in Markham, and if you are
white, get out” and “it is our turn; you are the minority now; you
                                                     (continued...)
No. 02-3862                                                   11

hence did not need the aid of McDonnell Douglas. Id. at
652. Unlike Hunt, Phelan does not offer any such direct
proof. Had he done so, he would be correct in arguing that
he need not meet the modified Mills test. In the absence of
such an offer, Hunt is of no help to Phelan.
    For these reasons, we AFFIRM.

A true Copy:
        Teste:

                          ________________________________
                          Clerk of the United States Court of
                            Appeals for the Seventh Circuit




2
   (...continued)
lost, you might as well move out; we don’t owe you nothing.” Hunt
v. City of Markham, Ill., 219 F.3d 649, 652 (7th Cir. 2000).


                    USCA-02-C-0072—10-21-03
12   No. 02-3862
