Clayton Owens v. Board of Education of Chicago

Filing

Filed opinion of the court by Judge Easterbrook. The judgment is AFFIRMED to the extent it dismisses Owens s age-discrimination claim but otherwise is REVERSED, and the case is REMANDED for trial. Diane P. Wood, Chief Judge; William J. Bauer, Circuit Judge and Frank H. Easterbrook, Circuit Judge. [6861334-1] [6861334] [16-3607]

Case: 16-3607

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In the

United States Court of Appeals
For the Seventh Circuit
____________________
No. 16-3607
CLAYTON OWENS,

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. 15 C 1089 — Jorge L. Alonso, Judge.

____________________

SUBMITTED AUGUST 8, 2017 — DECIDED AUGUST 14, 2017
____________________
Before WOOD, Chief Judge, and BAUER and EASTERBROOK,
Circuit Judges.
EASTERBROOK, Circuit Judge. In June 2012 Clayton Owens
became the maintenance supervisor at Phillips Academy
High School in Chicago. That December he came under supervision by Martine Miller, who managed the maintenance
staffs at several schools. According to Owens, in January
2013 he told Miller that he had an age-discrimination suit
pending against the Board of Education. She replied: “Do

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you think you’re going to keep your job working for the
Chicago Public Schools and you’re filing a lawsuit?”
Owens maintains that he reminded Miller about the suit
in May 2013, prompting her to say: “I think you lost your
mind by filing a lawsuit and you think you’re going to keep
your job. You’ll see what I’m talking about.” The next month
Miller gave Owens an “unsatisfactory” rating, the worst he
had received in his career (which began in 1975). Owens contends that Miller then told him: “I told you you weren’t going to get away with that.” That fall the Board of Education,
struggling with a shrinking budget and a declining student
population, laid off 25 maintenance workers. The “unsatisfactory” rating put Owens first in line to be let go, and he
was told that his services were no longer required. That led
him to take early retirement, which he characterizes as a
constructive discharge.
Owens contends that Miller discriminated against him
because of his age (61 at the time) and his first suit. The district court granted summary judgment to the Board. 2016
U.S. Dist. LEXIS 119772 (N.D. Ill. Sept. 6, 2016). The claim of
age discrimination failed, the court concluded, because no
other older employee had fared poorly in Miller’s evaluations and because she had legitimate reasons to downrate
Owens. A sheaf of documentary evidence shows that he
dealt slowly, if at all, with serious problems such as the lack
of hot water in the lavatories. Owens maintains that the severity of his performance deficits has been exaggerated. Still,
once an employer gives an apparently legitimate reason for
its decision, it prevails unless the plaintiff can show that the
reason was a pretext for discrimination, which means a phony reason rather than a mistaken one. St. Mary’s Honor Cen-

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ter v. Hicks, 509 U.S. 502 (1993). We agree with the district
court that the record would not permit a reasonable trier of
fact to conclude that Owens’s age influenced his “unsatisfactory” rating. See Ortiz v. Werner Enterprises, Inc., 834 F.3d 760
(7th Cir. 2016) (discussing the standards for the resolution of
employment-discrimination claims).
Owens’s retaliation theory is a different matter. The Age
Discrimination in Employment Act forbids penalizing employees for asserting their rights through administrative
complaints or suits. 29 U.S.C. §623(d). The fact that Owens
displayed lackluster performance would not justify his
layoff or discharge, if those shortcomings would have been
tolerated in someone who had not complained about discrimination. Owens has stated under oath that Miller knew
about his earlier suit and twice threatened to get rid of
someone with the temerity to sue his employer. Owens adds
that, when explaining his unsatisfactory rating, Miller made
a statement—“I told you you weren’t going to get away with
that.”—that a reasonable jury could understand as confirmation that she had carried through on her threat.
The district court nonetheless dismissed the retaliation
theory, writing that the third statement is ambiguous and
that the first two, which were blunt, “were made weeks or
months in advance of the June 2013 performance rating and
had nothing to do with it.” 2016 U.S. Dist. LEXIS 119772 at *31
(emphasis added). Yet whether the statements had something to do with the rating is a debatable proposition of fact
and therefore cannot be resolved on motion for summary
judgment. A reasonable juror could conclude that Miller
twice threatened to get rid of Owens on account of his lawsuit and used the rating to do that. In the absence of an “un-

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satisfactory” rating Owens’s seniority would have ensured
that he kept his job. That Miller did not (likely could not)
carry through on her threat in January does not show conclusively that the threat was unrelated to what happened in
June. It may take time for even a determined supervisor to
undermine an employee’s standing.
Miller contends that Owens is lying—that he never told
her about the suit and that she did not say the things he attributes to her. She also asserts that she did not learn of Owens’s suit from any other source until after his layoff. Finally,
she contends that she had no idea that her “unsatisfactory”
rating would cost Owens his job; she says that she was laying the groundwork to put him on a performance improvement plan, not to get rid of him. If the jury believes Miller,
then Owens will lose this suit. But if the jury believes Owens, and further concludes that Miller would have given
Owens a better rating had she been ignorant of his litigation,
then Owens is entitled to relief. A trial, not summary judgment, is the way to determine who is telling the truth.
The judgment is affirmed to the extent it dismisses Owens’s age-discrimination claim but otherwise is reversed, and
the case is remanded for trial.