Lionel Bordelon v. Board of Education of the City
Filing
Filed opinion of the court by Judge Kanne. AFFIRMED. William J. Bauer, Circuit Judge; Richard A. Posner, Circuit Judge and Michael S. Kanne, Circuit Judge. [6725889-1] [6725889] [14-3240]
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In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 14‐3240
LIONEL BORDELON,
Plaintiff‐Appellant,
v.
BOARD OF EDUCATION OF THE CITY
OF CHICAGO, a municipal corporation,
Defendant‐Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 11 C 08205 — Edmond E. Chang, Judge.
____________________
ARGUED NOVEMBER 2, 2015 — DECIDED FEBRUARY 3, 2016
____________________
Before BAUER, POSNER, and KANNE, Circuit Judges.
KANNE, Circuit Judge. On January 28, 2011, the Local
School Council in charge of Kozminski Community Acade‐
my voted to not renew the contract of long‐tenured principal
Lionel Bordelon. Bordelon, who was 63 at the time, believed
that his supervisor and Chief Area Officer for the Board of
Education of the City of Chicago, Dr. Judith Coates, manipu‐
lated and exercised undue influence over the Council’s deci‐
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sion. Bordelon alleges that Coates did so because of his age,
which, if true, would violate the Age Discrimination in Em‐
ployment Act, 29 U.S.C. § 623. The district court granted
summary judgment to the Board on Bordelon’s claim of age
discrimination. We affirm.
I. BACKGROUND
A. Factual Background
In 1993, Bordelon became the Principal of Kozminski
Community Academy, a kindergarten through eighth grade
school in the Chicago Public School system. Although the
Board of Education of the City of Chicago (“Board”) super‐
vises schools within its system, the Local School Council
(“Council”) is responsible for hiring, evaluating, and renew‐
ing contracts for principals in its area. The Board employs a
Chief Area Officer to supervise the principals assigned to his
or her area.
In October 2009, the Board hired Coates to serve as Chief
Area Officer for Area 15, making her Bordelon’s supervisor.
According to Bordelon, Coates immediately “began taking
steps to remove [him] from his position at Kozminski.” (Ap‐
pellant’s Br. at 4.)
When Coates began her new job, she inherited from her
predecessor a list of five or six principals. According to Ta‐
wana Sanders, Coates’s former executive assistant, it was a
list of “older black principals to be disciplined.” Sanders re‐
called that the list included Bordelon; Lori Lennox, principal
of Doolittle Elementary; and Mary Rogers, principal of Em‐
mett Till Academy. All three principals were in charge of
schools that were performing in the bottom of Area 15
schools.
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In February 2010, Coates and the Board fired Sanders.
Sanders testified that she “just felt that the Board wanted
someone younger and brighter.” Brighter, she explained,
meant that the replacement “has got more education, or
maybe she has a field in that position, she could do a better
job.”
Coates’s efforts to remove Bordelon did not begin in ear‐
nest until November 2010. On November 16, 2010, Coates
sent Bordelon notice of a pre‐discipline hearing based on in‐
subordination from September through November 2010. The
notice contained the following allegations: (1) failing to re‐
spond to a parent issue raised on November 2; (2) failing to
comply with a request from September 20 to set up a parent
meeting in October; (3) failing to schedule a meeting re‐
quested in an October 25 email regarding the arrest of sever‐
al Kozminski students; and (4) failing to respond to Coates’s
email from November 4 regarding resolution of the three
aforementioned matters. As a result of his hearing, Bordelon
received a five‐day suspension without pay, which he ap‐
pealed and never served.
On December 7, 2010, Coates issued an evaluation of
Bordelon that said he “needs improvement,” noting that
Kozminski was on academic probation for the second year in
a row with test scores trending downward.
In December 2010, the Council had a meeting, which on‐
ly five of the nine members attended. At this meeting, Coun‐
cil member Everhart testified that Coates “more or less sug‐
gested … [t]hat it was time for [Bordelon] to give it up.”
Everhart clarified, however, that he thought Coates was not
referring to Bordelon’s age but to Kozminski’s declining test
scores.
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Next, in a letter dated December 29, 2010, Coates reas‐
signed Bordelon to home with full pay pending the outcome
of an investigation into the following misconduct: (1) im‐
properly replacing asbestos‐containing tile at Kozminski; (2)
purchasing irregularities; and (3) tampering with school
computers in a manner that impeded access to Kozminski’s
records by the Board. James Ciesel, deputy general counsel
for the Board, testified that he intended to prepare dismissal
charges depending on the resolution of the investigation.
Instead, on January 28, 2011, while Bordelon was still
suspended with pay, the Council voted not to renew Bor‐
delon’s contract. Three members voted against renewal,
three voted in favor of renewal, and three abstained.1 The
Council informed Bordelon that the decision not to renew
was based on the following reasons: (1) “[f]ailure to provide
adequate principal reports” to the Council; (2) not being
evaluated as “highly qualified”; (3) “not meet[ing] the re‐
quirements needed to have an effective and safe school envi‐
ronment”; (4) “[l]ow test scores”; (5) “[d]isciplinary prob‐
lems”; and (6) “[p]arents do not feel you are open and recep‐
tive to them.”
On February 28, 2011, Bordelon submitted his notice of
retirement effective June 30, 2011, the end of his non‐
renewed contract.
1 A majority of all the members of the Council constitutes a quorum to
vote on the renewal of a principal’s contract. 105 ILCS 5/34‐2.2(c). If a
quorum is present, for the contract to be renewed, a majority of the full
membership of the Council must vote in favor of renewal, which would
ordinarily be six votes. Id. According to Bordelon, however, there was a
vacancy on the Council, which meant that he only needed five votes.
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B. Procedural History
On November 16, 2011, Bordelon filed suit against the
Board alleging (1) discrimination on the basis of age in viola‐
tion of the Age Discrimination in Employment Act (ADEA),
29 U.S.C. § 623; (2) discrimination on the basis of race in vio‐
lation of Title VII, 42 U.S.C. § 2000e‐2, and 42 U.S.C. § 1981;
(3) retaliation in violation of Title VII, the ADEA, and 42
U.S.C. § 1981; (4) constructive discharge; and (5) deprivation
of due process.
The Board moved for summary judgment on all of Bor‐
delon’s claims, which the district court granted.2 With re‐
spect to Bordelon’s age discrimination claim, the district
court found that the evidence Bordelon claimed was direct
proof of age discrimination “do[es] not support a finding of
discriminatory intent.”
Bordelon then filed a motion for reconsideration in which
he pointed to more evidence that he thought supported his
age discrimination claim. The district court excluded the ad‐
ditional evidence as inadmissible hearsay, lacking founda‐
tion, or too conclusory to withstand summary judgment.
This appeal followed.
II. ANALYSIS
Bordelon’s sole issue on appeal is whether the district
court properly granted summary judgment to the Board on
his claim of age discrimination. We hold that it did.
We review a district court’s grant of summary judgment
de novo. Sartor v. Spherion Corp., 388 F.3d 275, 277 (7th Cir.
2 Bordelon only appeals the grant of summary judgment with respect to
his claim of age discrimination.
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2004). We view the facts, and all reasonable inferences
drawn from those facts, in the light most favorable to the
nonmoving party. Id. at 278. A district court’s evidentiary
ruling to strike certain factual allegations, however, “is re‐
viewed under a deferential abuse of discretion standard
even on a motion for summary judgment.” Lucas v. Chi.
Transit Auth., 367 F.3d 714, 720 (7th Cir. 2004).
Summary judgment is appropriate “if the movant shows
that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317,
322 (1986). This requires that “there be no genuine issue of
material fact,” and “the mere existence of some alleged factual
dispute” will not defeat summary judgment. Anderson v. Lib‐
erty Lobby, Inc., 477 U.S. 242, 247–48 (1986).
We have made clear that “[t]he evidence supporting a
factual assertion must represent admissible evidence.” Judson
Atkinson Candies, Inc. v. Latini‐Hohberger Dhimantec, 529 F.3d
371, 382 (7th Cir. 2008) (emphasis added). “[C]onclusory
statements, not grounded in specific facts, are not sufficient
to avoid summary judgment.” Lucas, 367 F.3d at 726; see also
Gabrielle M. v. Park Forest‐Chi. Heights, Ill. Sch. Dist. 163, 315
F.3d 817, 822 (7th Cir. 2003) (“Rule 56 demands something
more specific than the bald assertion of the general truth of a
particular matter, rather it requires affidavits that cite specif‐
ic concrete facts establishing the existence of the truth of the
matter asserted.” (quotation marks omitted)).
The ADEA prohibits an employer from “discriminat[ing]
against any individual … because of such individual’s age.”
29 U.S.C. § 623(a)(1). Bordelon, however, has not sued the
entity responsible for not renewing his contract—the Coun‐
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cil3—instead choosing to sue the Board, relying on a “cat’s
paw” theory of liability. See Staub v. Proctor Hosp., 562 U.S.
411, 415–16 (2011).
Therefore, to withstand summary judgment, Bordelon
must point to evidence upon which a trier of fact could con‐
clude that Coates (1) harbored discriminatory animus based
on his age and (2) gave the Council information that influ‐
enced its decision not to renew his contract.
A. Coates’s Discriminatory Motivation
A plaintiff may prove discriminatory intent under the
ADEA by relying on either the direct method of proof or the
indirect method of proof.4 Atanus v. Perry, 520 F.3d 662, 671
(7th Cir. 2008).
Under the direct method of proof, the plaintiff may rely
on either direct evidence or circumstantial evidence to show
discriminatory motivation. Rudin v. Lincoln Land Cmty. Coll.,
420 F.3d 712, 720–21 (7th Cir. 2005).
Direct evidence, which is quite rare, is “an acknowledg‐
ment of discriminatory intent by the defendant.” Id. (quoting
Troupe v. May Dep’t Stores Co., 20 F.3d 734, 736 (7th Cir.
1994)).
3 The Council is a legal entity separate from the Board. 105 ILCS 5/34‐2.1.
It follows then that the Council can be sued in its own name for its con‐
duct in not renewing a principal’s contract. See Asllani v. Bd. of Educ. of
City of Chi., 845 F. Supp. 1209, 1219–20 (N.D. Ill. 1993).
4 Bordelon does not rely on the indirect method of proof, which would
proceed under the familiar burden‐shifting framework of McDonnell‐
Douglas Corp. v. Green, 411 U.S. 792 (1973).
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Circumstantial evidence is evidence that “allows the trier
of fact to infer intentional discrimination by the deci‐
sionmaker.” Id. (quotation marks omitted). We have recog‐
nized four types of circumstantial evidence of intentional
discrimination:
(1) suspicious timing; (2) ambiguous statements or
behavior towards other employees in the protected
group; (3) evidence, statistical or otherwise, that
similarly situated employees outside of the protect‐
ed group systematically receive better treatment;
and (4) evidence that the employer offered a pre‐
textual reason for an adverse employment action.
Dickerson v. Bd. of Trs. of Cmty. Coll. Dist. No. 522, 657 F.3d
595, 601 (7th Cir. 2011).
Because Bordelon has chosen to proceed under the direct
method of proof, he must point to admissible evidence,
whether direct or circumstantial, of Coates’s discriminatory
motivation based on age.
1. Evidence the District Court Admitted
Before the district court—and on appeal—Bordelon re‐
lied on several pieces of circumstantial evidence that he
claims give rise to an inference of Coates’s age discrimina‐
tion. First, he points to Everhart’s testimony that Coates
“more or less suggested … [t]hat it was time for [Bordelon]
to give it up.” This comment was made at a Council meeting
in December 2010—shortly before it would vote on whether
to renew Bordelon’s contract. Bordelon contends that this is
an ambiguous statement akin to a company’s remarks that it
would “not keep[] employees on until they reached sixty‐
five.” Robinson v. PPG Indus., Inc., 23 F.3d 1159, 1164–65 (7th
Cir. 1994). This “express remark[] about Plaintiff’s age” and
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its suspicious timing, Bordelon argues, could lead a trier of
fact to infer that Coates held an age animus. (Appellant’s Br.
at 5.)
Coates’s statement is not an express remark about Bor‐
delon’s age. Nor is it an ambiguous remark sufficient to give
rise to an inference that Coates was motivated by age. Ever‐
hart clarified that he thought this statement was referring to
the school’s poor academic performance, not Bordelon’s age.
Council member Chantelle Allen testified that Coates did
not make any statements about Bordelon’s age at the meet‐
ing. The statement made, unlike Robinson, does not even
mention age. Coupled with the testimony of Everhart and
Allen, no rational trier of fact could draw the inference that
Coates was motivated to discriminate against Bordelon
based on his age because of this statement.
Bordelon also points to Sanders’s testimony that Coates
had a list of five or six “older black principals to be disci‐
plined.” This list does not support an inference of intentional
discrimination based on age. First, there was a younger prin‐
cipal included on the list; Lennox was only 48. Second, the
two principals that Sanders identified as having been on the
list were both, like Bordelon, in charge of poorly performing
schools. Third, Sanders did not testify as to who the other
two or three principals on the list were. Finally, the mere fact
that older principals appeared on the list does not support
an inference of age discrimination where most of the princi‐
pals in Area 15 were older—only two of the sixteen principals
were under 40 years old. Bordelon has offered no explana‐
tion as to why these principals were on this list or whether
they merited discipline. Therefore, Sanders’s testimony
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about the list does not give rise to an inference of age dis‐
crimination by Coates.
Additionally, as evidence that Coates favored younger
workers, Bordelon relies on Sanders’s testimony that Coates
fired her and replaced her with someone “younger and
brighter.” Sanders explained, however, that she meant that
her replacement must have “more education, or maybe she
has a field in that position, she could do a better job.” This
testimony does not give rise to an inference that Coates was
motivated by age discrimination where Sanders expressly
disavowed that she was replaced because of her age. Instead,
she testified that she was replaced by someone who could do
a better job. Her impression that Coates wanted someone
younger, without more, does not give rise to an inference of
intentional discrimination.
2. Evidence the District Court Excluded
Additional evidence that Bordelon cites on appeal was ei‐
ther excluded by or not raised in front of the district court.
Because Bordelon has not argued on appeal that the district
court abused its discretion in excluding the following evi‐
dence, he has waived any argument about its exclusion be‐
ing improper. Lucas, 367 F.3d at 726.
Assuming arguendo that Bordelon had not waived these
arguments, the district court did not abuse its discretion in
excluding this evidence, nor does the evidence to which he
directs us give rise to an inference of discriminatory motiva‐
tion sufficient to withstand summary judgment.
Sanders testified that Coates would “pick on” principals
sixty years of age or older “by saying that their paperwork
was wrong.” Sanders testified that Coates would “make
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negative remarks about older principals to her team” but
would not treat younger principals that way. Bordelon
points to the similar testimony of Velma Cooksey, another
older principal supervised by Coates. Cooksey testified that
Coates “humiliated the only [sic] older principals” and
“showed favoritism for the younger workers against the old‐
er workers.”
In Lucas, we concluded that the district court did not
abuse its discretion in excluding statements that the supervi‐
sor “treated African‐Americans ‘more harshly’ … [or] that
African‐Americans were asked to change rail ties more fre‐
quently, work longer sections of the track and were written
up for reasons that non‐African‐Americans were not.” Lucas,
367 F.3d at 726.
Cooksey’s and Sanders’s testimony is as conclusory as the
testimony rejected in Lucas. Neither offers specific facts upon
which to conclude Coates treated older principals in a dis‐
criminatory manner. Instead, just like the statements exclud‐
ed in Lucas, Sanders and Cooksey only offered sweeping
generalizations about the way the protected class was treat‐
ed. Because this evidence is not sufficient to preclude sum‐
mary judgment, the district court did not abuse its discretion
in excluding it.
Finally, Bordelon points to the affidavit of Clarice Berry,
president of the Chicago Principals and Administrators As‐
sociation. Berry’s affidavit stated that “Coates treated older
principals, including Plaintiff, in a discriminatory manner by
giving schools with older principals less support than
schools with younger principals. I know this from discus‐
sions I had with older principals in Area 15. Younger princi‐
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pals did not mention to me that they experienced a lack of
curriculum support from Coates.”
Berry’s testimony is inadmissible hearsay and was
properly excluded. Fed. R. Evid. 801(c), 802. Bordelon argues
that Berry’s testimony is not hearsay because it falls under
the exclusion from hearsay for an opposing party’s state‐
ment. Fed. R. Evid. 801(d)(2). The opposing party in this case
is the Board. Berry’s testimony comes from statements made
by other principals in Area 15. Bordelon has not alleged that
the Board adopted the other principals’ statements or au‐
thorized the principals to speak on its behalf. Presumably,
Bordelon is arguing that these constitute statements made by
Board employees “on a matter within the scope of that rela‐
tionship,” and so their statements should be admissible
against the Board under Rule 801(d)(2)(D).
To fall within the exclusion from hearsay, however, the
statements made by the other principals must be within the
scope of their employment relationship with the Board.
“[N]ot everything that relates to one’s job falls within the
scope of one’s agency or employment.” Williams v. Pharmacia,
Inc., 137 F.3d 944, 950 (7th Cir. 1998). An employee “need not
have been personally involved in that action, but her duties
must encompass some responsibility related to ‘the deci‐
sionmaking process affecting the employment action.’” Ste‐
phens v. Erickson, 569 F.3d 779, 793 (7th Cir. 2009) (quoting
Simple v. Walgreen Co., 511 F.3d 668, 672 (7th Cir. 2007)).
In Williams, we held that the complaints of sex discrimi‐
nation made by five other female employees did not fall
within Rule 801(d)(2)(D) because “[n]one of the women were
agents of [the defendant] for the purpose of making mana‐
gerial decisions affecting the terms and conditions of their
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own employment.” 137 F.3d at 950. The same is true in this
case. The complaints of age bias made by the other princi‐
pals do not fall within the scope of their employment be‐
cause they did not have authority to make managerial deci‐
sions on behalf of the Board regarding their own employ‐
ment. Accordingly, the exclusion from hearsay under Rule
801(d)(2) is inapplicable, and the district court properly ex‐
cluded Berry’s testimony.
In conclusion, Bordelon has not constructed “a convinc‐
ing mosaic of circumstantial evidence that [would] allow[] a
jury to infer intentional discrimination by the decisionmak‐
er.” Makowski v. SmithAmundsen LLC, 662 F.3d 818, 824 (7th
Cir. 2011) (quotation marks omitted). Therefore, the district
court properly granted summary judgment in favor of the
Board.
B. Coates’s Influence on the Council’s Decision
In order to maintain his suit against the Board for the
Council’s decision, Bordelon must also show that Coates in‐
fluenced the Council’s decision by relying on the cat’s paw
theory of liability.
“[C]at’s paw liability may be imposed on an employer
where the plaintiff can show that an employee with discrimi‐
natory animus provided factual information or other input
that may have affected the adverse employment action.”
Smith v. Bray, 681 F.3d 888, 897 (7th Cir. 2012) (quotation
marks omitted and emphasis added). Because Coates and
the Board were not the decision‐makers in this case, Bor‐
delon must show that Coates bore a discriminatory animus
that influenced the Council. Bordelon did not point to evi‐
dence “that the biased subordinate actually harbored dis‐
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criminatory animus against the victim of the subject em‐
ployment action,” so the cat’s paw theory of liability cannot
save his case from summary judgment. Johnson v. Koppers,
Inc., 726 F.3d 910, 914 (7th Cir. 2013).
Furthermore, there is substantial evidence in the record
that the Council had independent reasons for choosing not
to renew Bordelon’s contract, making it quite unlikely that
Coates influenced its decision. Accordingly, the district court
properly granted the Board’s motion for summary judgment.
III. CONCLUSION
For the foregoing reasons, the judgment of the district
court is AFFIRMED.
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