* 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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-60178

Summary Calendar

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

United States Court of Appeals

Fifth Circuit

F I L E D

September 10, 2008

Charles R. Fulbruge III

Clerk
No. 08-60178

2

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 DefendantsAppellees, 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
No. 08-60178

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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discrimination.1In 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

attemptto (1) discreditthe 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

refusalto 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
No. 08-60178

4 Federal Rule of Civil Procedure 56(f) provides in part that “[i]f a party opposing the

[motionfor summary judgment] shows by affidavitthat, 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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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.