REIN v. QUINCY PUBLIC SCHOOL DISTRICT #172
Filing
55
OPINION denying 34 Motion for Summary Judgment. SEE WRITTEN OPINION. Entered by Judge Sue E. Myerscough on 2/11/2014. (MJ, ilcd)
E-FILED
Tuesday, 11 February, 2014 12:01:25 PM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
PAMELA REIN,
Plaintiff,
v.
QUINCY PUBLIC SCHOOL
DISTRICT #172,
Defendant.
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No. 11-3425
OPINION
SUE E. MYERSCOUGH, U.S. District Judge:
This matter is before the Court on the Motion for Summary
Judgment filed by Defendant Quincy Public School District #172
(“Defendant”) against its former employee and now Plaintiff, Pamela
Rein (“Plaintiff”). Because genuine issues of material fact exist,
Defendant’s Motion for Summary Judgment is DENIED.
I.
FACTUAL BACKGROUND
Between the ages of 54 and 55, Plaintiff Pamela Rein applied for six
administrative positions in the Quincy Public School District. Despite
her administrative qualifications and 19-year history with the District,
Plaintiff was not hired for any of these positions. It must be because of
my age, she thought, and filed this suit under the Age Discrimination in
Employment Act, alleging that Defendant discriminated against her
because of her age.
Nearly all of Pamela Rein’s educational experiences—as a student,
teacher, and principal—have occurred in or around Quincy, Illinois.
Plaintiff attended Quincy High School and graduated with a bachelor’s
degree in special education from Western Illinois University. She earned
her Master’s Degree in elementary education and later obtained an
administrative certification from Quincy University. In 2009, while
working in the Quincy School District, Plaintiff was awarded a
superintendent certificate after completing a two-year program at
Western Illinois University.
Years before becoming Plaintiff, Pamela Rein was Principal or
Director of Irving Alternative School, which had previously been known
as the 14th Alternative School, in Quincy, Illinois.1 She held that
position from 2004 to 2010 when, depending on which party is asked,
1
As Assistant Superintendent Christie Dickens explained, the Alternative School had
a “Director” who had the same duties as a Principal—there was no difference between
the two titles. See Dickens Deposition, d/e 34-5 at 39.
Page 2 of 35
the school was either “closed” or “outsourced.” The Irving Alternative
School is exactly as it sounds: it is an alternative to Quincy High School
for the students who were struggling academically or behaviorally there.
Prior Superintendent Lonny Lemon, a key witness in this case, has
described students at Irving as those who were emotionally, socially, or
academically “at risk.” Lemon Deposition, d/e 34-6 at 29-30. There
were also students with behavioral issues who were in trouble with the
law and missed school. Id. at 30. According to Mr. Lemon, “truancy was
a huge factor” at Irving. Id. at 31. Mr. Lemon explained that “truancy”
is defined by the state and that at the relevant time, a “chronic truant”
was a student who missed 10 percent of his classes. Id. at 33-34
(explaining that in the past few years the state legislature has decreased
the percentage from 10 to five). Irving students had lower graduation
rates than their counterparts in the mainstream Quincy High School. Id.
at 31.
Safety was an additional problem at Irving School. In or around
2008, at least two security guards policed the Irving grounds. Plaintiff
later asked for “more staff” due to, in Mr. Lemon terms, “extreme issues
with kids.” Lemon Deposition, d/e 34-6 at 45.
Page 3 of 35
1. Plaintiff’s Positive and Negative Evaluations as Principal
Around 2008, when the Irving School opened, a Pre-Evaluation
Reflection and Feedback form indicated that Plaintiff was succeeding in
her position as Principal. This Pre-Evaluation form included Plaintiff’s
goals based on six state standards and feedback on those goals and
Plaintiff’s performance from the “Central Office Administrative Team,”
(“Central Office”) which consisted of the superintendent at that time,
Tom Leahy, and Assistant Superintendents Patricia Sullivan-Viniard and
Christie Dickens. The below snapshots of the feedback on the PreEvaluation form show the Central Office praising Plaintiff’s work as
Principal of Irving:
We agree now that you have done a superb job of
establishing the culture and climate for supporting at
risk students, and the next—the most important—step
is to ensure that the students who work and learn in
that environment receive a quality, rigorous
instructional program.
You are very organized and utilize effective problemsolving skills on a daily basis. Your demeanor, work
ethic and flexibility all serve you well as you work to
manage the at-risk teens in your building and the staff
who support them.
The Central Office Administration commends you, Pam,
for your natural talent to work warmly, cooperatively
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and collaboratively with parents/guardians in the most
challenging circumstances . . . . Your calm, welcoming,
non-judgmental and genuine demeanor puts all around
you at ease.
The Central Office administration observes you
consistently being an educational leader who promotes
the success of all students by understanding, responding
to, and influencing the larger political, social, economic,
legal, and cultural context.
Lemon Deposition, Exhibit 1, d/e 34-6 at 175-80.
Ms. Sullivan-Viniard prepared this pre-evaluation form after
collaborating with Mr. Leahy, the superintendent who preceded Mr.
Lemon, and Ms. Dickens. See Sullivan-Viniard Deposition, d/e 34-4 at
33. Mr. Leahy’s participation dates the evaluation to some time prior to
2008, when Mr. Lemon became superintendent. Id. According to Ms.
Sullivan-Viniard, the Central Office’s feedback was based on discussions
with students and staff at Irving, staff surveys, and the Central Office
Administration’s personal observations of Plaintiff. Id.
This Pre-Evaluation form created by Plaintiff, former
Superintendent Mr. Leahy, Ms. Sullivan-Viniard, and Ms. Dickens is a
stark contrast to the evaluation Plaintiff received in January of 2010
when Mr. Lemon led the Central Office as Superintendent. Although the
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Central Office praised Plaintiff’s “ability to collaborate with families” as a
“leadership strength” and stated that her work with the “Truancy task
force has been notable,” other comments in the review are critical, as the
below sample shows:
You have been unsuccessful in facilitating a vision of
learning for the students, staff, and faculty of Irving.
Feedback to Central Office through meetings, surveys,
and personal conversations with faculty and staff at
Irving shows a prevalent belief that students are not
disciplined in a fair and consistent manner.
A number of the above issues were addressed with you
by [Mr. Lemon] and Mrs. Dickens in meetings held on
11-17-08 and 1-7-09. Further, you set as goals for the
2009-10 school year to address issues of attendance,
behavior and changes in the behavior rubric. Yet these
areas continue to be issues of concern this year and we
have little to no evidence that you have addressed them,
created new action plans or implemented substantive
changes in current practices and policies.
To summarize, Central Office has great concerns that
there has been no significant improvement in the
culture of Irving School . . . . We are not seeing the
results we expected from your building . . . . There is
minimal evidence that you have assisted your faculty
and staff to create an atmosphere of learning at Irving
Alternative.
Culture and climate assessment by you, in consultation
with your staff, should have brought response and
implementation of change to correct student behavior,
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attendance, and academic accountability.
have any indications of this occurring.
We do not
The academic climate at Irving currently does not meet
District standards and expectations.
You have yet to convey any Irving action plan to
address your truancy problem.
Lemon Deposition, Exhibit 6, d/e 34-6 at 189-93.
Some point after receiving this negative evaluation, Plaintiff wrote a
rebuttal in which she contested many, if not all, of these critiques. See
Lemon Deposition, Exhibit 5, d/e 34-5 at 195-97. In her rebuttal,
Plaintiff disputed the allegation that she overruled discipline given by
staff, stating it is “simply not true” and that other examples of her taking
such action are “grossly exaggerated.” Id. at 195. She also asserted that
attendance had improved at the school and noted that “change takes
three to five years.” Id. at 196. Plaintiff additionally challenged the
blame the Central Office placed on her for the students’ poor
performance on state-administered annual tests:
The students who come to Irving have had a history of
school failure both academically and socially. To hold
an administrator accountable for [the annual test]
results is ridiculous. How many of these students have
spent more than a few months in the Alternative
Program before testing? What were the typical test
Page 7 of 35
scores for these students
Alternative Program?
prior
to
entering
the
Id.
Affidavits submitted by Terry Ellerman, the former Principal at
Quincy High School who “worked closely” with Plaintff, and Dinah
Harris, a counselor at Irving, support the points Plaintiff made in this
rebuttal. See Ellerman Affidavit, d/e 38-3; Harris Affidavit, d/e 38-4.
Mr. Ellerman attests that Plaintiff worked with teachers “to provide a
strong program” and “continued to increase the academic rigor of the
program” at Irving. Ellerman Affidavit, d/e 38-3 ¶ 3. According to Mr.
Ellerman, Plaintiff helped “many students succeed and graduate from
Quincy High School.” Id. Ms. Harris is equally complimentary and
specifically mentioned that Plaintiff “did institute a program to address
the students’ use of profanity” that decreased the profanity at Irving.
Harris Affidavit, d/e 38-4 ¶ 3. Ms. Harris also stated that while it was
true many teachers at Irving were stressed, the stress was “because of the
students’ conduct, not because of Pam Rein.” Id. ¶ 7. Regarding the
Irving curriculum, Ms. Harris notes that “we were beginning to make
important steps in reaching a goal of a strong curriculum.” Id. ¶ 8. She
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also mentions, however, that “with the particular student population,”
the goal of a strong curriculum is “not always reachable.” Id.
In Plaintiff’s own affidavit she states that after receiving her
negative review in 2010, she met with Mr. Lemon and asked whether he
was going to fire her. Rein Affidavit, d/e 38 ¶ 2. According to Plaintiff,
Mr. Lemon said that she “could resign.” Id. Defendant states that this
offer to resign “was included in correspondence regarding [Plaintiff’s]
poor performance review and subsequent outsourcing to Ombudsman of
the alternative school program.” Defendant’s Reply to Plaintiff’s
Response to Motion for Summary Judgment, d/e 49 at 41.
So why this dramatic change in the Central Office’s view of
Plaintiff’s work as Principal between 2010 and 2012? Each party has a
different answer to this question, and each party uses that answer to
explain why Plaintiff was rejected from the six administrative positions
for which she subsequently applied. Plaintiff attributes the change to the
Central Office’s quest to push her into retirement. She argues that her
age, in addition to the high salary she would fetch as an experienced and
qualified educator in the District, are the reasons the Central Office did
not hire her for any of the administrative positions. Plaintiff’s theory,
Page 9 of 35
according to her Response to Defendant’s Motion for Summary
Judgment, is that Defendant created this poor evaluation of Plaintiff
rather than moving her to an open position at another school after Irving
closed, because of Plaintiff’s age.
Defendant, on the other hand, contends that after 2008, Irving
staff increasingly complained to the Central Office about the lack of
security and discipline at the school and blames Plaintiff for the students’
high truancy rates and bad behavior, including a rampant use of
profanity and calling teachers by their first names. The Central Office
also faulted Plaintiff for the students’ poor performances on annual
exams administered by the State of Illinois. Although some in the
Central Office considered Pam an “educational leader” around 2008, the
discipline and safety issues began to slowly change their assessment. See
Sullivan-Viniard Deposition, d/e 34-4 at 42. The Central Office
contends that by the end of her tenure at Irving, she was not an effective
“educational leader.” Id.
Page 10 of 35
2. Interactions between Plaintiff and Superintendent Lemon
from approximately January 2010 to June 2010
It was not only the fact she was in her mid-50s that made Plaintiff
question the true motives behind the District’s decisions not to hire her;
Plaintiff’s interactions with Mr. Lemon from January 2010 onward have
led her to believe that the District, and specifically Mr. Lemon, wanted
her to retire.
The first of these interactions was a meeting Plaintiff had with Mr.
Lemon in or around January 2010, before Plaintiff received the negative
evaluation. Mr. Lemon and Plaintiff recall the conversation they had at
the meeting somewhat differently. Plaintiff contends that the purpose of
her meeting was to review her evaluation and discuss her goals for Irving.
Rein Deposition, d/e 34-1 at 79. Plaintiff testified that at the beginning
of the meeting, she and Mr. Lemon made small talk—what’s happening,
how are you, etc. Id. Plaintiff then recalls that she referenced her goals
and told Mr. Lemon that she had been working on and readjusting them.
According to Plaintiff, Mr. Lemon “then just in conversation said, ‘So
when do you plan to retire?’” Id. at 80. Plaintiff responded that she did
not have plans to retire and wanted to continue working in the
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alternative program. Id. Apparently, Mr. Lemon then started talking
about the cost of his own retirement compared to Plaintiff’s cost and
noted that because of her experience in public education, Plaintiff “was
in a much better situation to retire than he would be,” or in other words,
that “it would be much easier” for Plaintiff to retire than for Mr. Lemon.
Id.
Plaintiff also stated that Mr. Lemon indicated that he would retire
as soon as he was eligible. Id. at 82. Plaintiff emphasizes that Mr.
Lemon never discussed her goals with her: “He didn’t even look at them.”
Id. at 81.
Defendant disputes the accuracy and materiality of much of
Plaintiff’s account of this conversation. In Defendant’s Reply to
Plaintiff’s Response to Summary Judgment, Defendant cites Mr. Lemon’s
deposition to support the claim that “Mr. Lemon does not agree that he
asked Plaintiff she planned to retire in the words used by the Plaintiff.”
d/e 34-6 49 at 9. The corresponding page of the transcript cited to,
however, shows not that Mr. Lemon disputes the question, but that he
does not remember asking it:
Q. Well, I’m asking. Did you ask Pam Rein
in January of 2010 when she planned to retire?
Page 12 of 35
A. I don’t recall. I remember a conversation I’d be glad
to explain.
*
*
*
Q: So are you denying that you asked her
that question; when she planned to retire, in
January of 2010?
A. I remember the conversation. I don’t
recall asking her that specific. I remember the
context of our conversation. I don’t remember
that was the specific question I asked.
Lemon Deposition, d/e 34-6 at 96-97.
In his deposition, Mr. Lemon went on to explain the conversation
with Plaintiff as “friendly” and “casual.” Id. at 98, 100. According to
Mr. Lemon, when he learned in their meeting that Plaintiff had taught
on an Indian Reservation, he thought he was in a “similar position”—
“We’re kind of in the same boat”—because he had also worked in a job
outside of the state school system. Id. at 99. Mr. Lemon testified that
he asked Plaintiff whether she received credit in the Teachers Retirement
System for teaching on an Indian Reservation because he had not
received credit for his “independent job” at a parochial school. Id. at 98.
He apparently then told Plaintiff that he had to “work longer” to get a
full pension. Id. at 99. Mr. Lemon testified that he does not “even
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remember what she said” when he asked Plaintiff about these credits. Id.
Regarding the goals Plaintiff brought with her to the meeting, Mr. Lemon
testified that he could not remember the purpose of the meeting. Id. at
97.
A few months after this meeting, on April 6, 2010, Mr. Lemon sent
Plaintiff an email with the subject line, “Are You Thinking About
Retirement?”. Lemon Deposition, Exhibit 7, d/e 34-6 at 212. The email
Superintendent Lemon forwarded advertised a free program about
retirement offered by University of Illinois Extension. University of
Illinois Extension sent Mr. Lemon the email that same day and it is
undisputed that he then passed along the email to Plaintiff. Whether
Mr. Lemon targeted the email to Plaintiff personally or forwarded it to
many other employees is unclear. No personal message from Mr. Lemon
to Plaintiff appears above the email that he forwarded to her. Curiously,
there is no “TO” line in the copy of the email, but Defendant argues that
Mr. Lemon would have forwarded this email to “many if not all
employees in the district.” Lemon Affidavit, d/e 49-3 ¶ 35.
In addition to this email and the conversation Plaintiff had with
Mr. Lemon during their meeting, Plaintiff offers two more pieces of
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evidence, the first of which is the lack of a remediation plan. Mr. Lemon
explained in his deposition that if teachers or administrators were not
meeting standards, the District would put them on a “formal remediation
plan.” This was “typical” after an employee received an unsatisfactory
rating on an evaluation. Lemon Deposition, d/e 34-6 at 58. Though
typical, this process was not automatic; Plaintiff was not put on a
remediation plan after her unsatisfactory evaluation. She argues that no
remediation plan was offered because the Central Office wanted her to
retire instead. Additionally, Plaintiff insinuates that the high number of
teachers retiring in 2010 supports her argument that the Central Office
was trying to push her into retirement.
On May 13, 2010, just over one month after Mr. Lemon sent
Plaintiff the email about the retirement program, Mr. Lemon sent
Plaintiff and two other teachers an email congratulating them on winning
“The Golden Apple Award.” Lemon Deposition, Exhibit 8, d/e 34-6 at
214. Mr. Lemon described in his deposition that the Golden Apple
Award is given to educators by a local television station that solicits
nominations from parents, students, and community members. Id. at
108-09. Mr. Lemon explained that the reasons one is chosen for this
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award “varies,” but in his view, those who win it have done something
“worthwhile” or “real meritorious.” Id. at 108. Although Mr. Lemon
agreed that such an award was a “noteworthy” accomplishment, he stated
he did not recall whether Plaintiff had ever won a Golden Apple. Id. at
109. Mr. Lemon’s email to Plaintiff and the other two award winners
informed them that he planned to “recognize [their] achievement” at the
school board meeting the following week. He stated they were welcome
to attend and expected them to receive “a rich round of applause . . . .”
Id. at 214.
In June of 2010, one month after this award recognition, the Irving
School closed and Plaintiff’s administrative contract ended. While
applying for administrative positions in the District, Plaintiff began
teaching students in grades six through twelve at the Adam County
Juvenile Detention. Plaintiff’s annual salary there was around $62,000.
3. Plaintiff’s attempts to secure an administrative position
From 2010 to 2012, Plaintiff applied for the following positions in
the District, all of which were given to people younger than Plaintiff:
1. June 2010: Assistant Principal at Quincy Junior High was given
to Eryn Beswick, who was 32 years old.
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2. February 2011: Assistant Principal at Quincy Junior High was
given to Laurie Fiorenza, age 39.
3. January 2011: Christy Cox, age 36, got the position of Principal
at Berrian Elementary. Plaintiff interviewed for this job.
4. March 2011: Principal of Quincy Junior High School was given
to Daniel Sparrow, age 41. Plaintiff interviewed for this position
as well.
5. March 2012: the position of Principal at Ballwin North
Intermediate School went to Jason Fink, age 35.
6. Spring of 2012: Director of the Alternative School was a position
given to Cheryl Dreasler, who was 53 years old when she was
hired.
Defendant used a selection process comprised of screening tools,
interviews, and recommendation committees to choose these candidates.
See Sullivan-Viniard Deposition, d/e 34-4 at 7-10, 93; Dickens
Deposition, d/e 34-5 at 11-20 (explaining hiring procedure). After a job
description was released in the District, individuals would submit
applications. For some of these positions, selected applicants would
undergo a screening process in which trained administrators conducted
Page 17 of 35
tests or used tools like the “principal perceiver” to evaluate the
applicants. This “principal perceiver” was created by a company called
Ventures for Excellence and included a coding sheet with prepared
questions that trained administrators used to interview candidates.
Plaintiff, as well as Jason Fink and Daniel Sparrow, were all given
this Ventures of Excellence interview when they applied for the principal
position at Quincy High School. According to a deposition exhibit on
which Defendant wrote some applicants’ scores, Plaintiff scored an “11”
and Daniel Sparrow and Jason Fink both scored a “16.” Dickens
Deposition, Exhibit 12, d/e 34-5 at 92. Ms. Dreasler, who later became
Director of the Alternative School, was given a score of “15.” Id. at 102.
On the second page of Plaintiff’s Venture of Excellence evaluation, Anne
Cashman, the administrator who interviewed Plaintiff, predicted Plaintiff
would be a “Moderate,” rather than “Very High” or “Good” principal.
Id. at 103; Sullivan-Viniard Deposition, d/e 34-4 at 27. Ms. Dickens
explained in her deposition that these scores and evaluations were given
around the spring of 2012 and would be used if the applicant applied for
subsequent positions. Id. at 20.
Page 18 of 35
Selected applicants would also have a first-round interview with a
committee that would make recommendations to the Central Office.
The committee members varied based on the position the District was
seeking to fill. From these recommendations, the Central Office—in this
case, Lemon, Sullivan-Viniard, and Dickens—would either bring in
finalists for additional interviews or make a selection to present to the
school board.
Plaintiff claims that with the exception of Ms. Dreasler, who was 53
years old when she became Director of the Alternative School, all of the
individuals chosen for the positions Plaintiff wanted were much younger
and less qualified than she was at the time. In her Response to
Defendant’s Motion for Summary Judgment, Plaintiff argues that Eryn
Beswick, age 32, who had previously been a special education
coordinator and special education teacher, lacked previous administrator
experience when she was named assistant principal. Laurie Fiorenza, age
39, replaced Eryn Beswick, and Plaintiff claims that she too was a
classroom teacher without administration experience. Christie Cox, age
36, received her administrator’s certificate approximately six months
before she was selected for the Principal position at Berrian Elementary
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and had worked as an elementary school principal for one year. Jason
Fink, age 35, was a principal from August 2010 to March 2012—a lesser
term than Plaintiff’s at Irving—before he was selected as Principal. And
Daniel Sparrow, who was 41 years old when he was chosen as the Quincy
Junior High Principal, was a principal and athletic coach for 5 years, but
Plaintiff points out that unlike her, he had worked outside of the
District.
The key players in the Central Office—Mr. Lemon, Ms. SullivanViniard, and Ms. Dickens—all contend in their depositions and affidavits
that Plaintiff’s performance as Director of the Irving School worked
against her efforts to obtain any of these positions. In addition to her
negative evaluation, Defendant cites staff surveys in which staff noted
that Plaintiff was “too lenient,” “morale is low,” and “students have the
upper hand.” Defendant’s Reply to Plaintiff’s Response, d/e 49 ¶ 39.
These comments are only a sample of the comments from these staff
surveys that both critique and praise Plaintiff’s performance as Director.
See Plaintiff’s Response to Defendant’s Motion for Summary Judgment,
d/e 39, Exhibit F.
Page 20 of 35
Defendant additionally argues that the people chosen for these
positions had specific skills and experiences that made them better
candidates than Plaintiff. Dan Sparrow, for example, impressed Ms.
Dickens and Mr. Lemon with his reputation as an “excellent
disciplinarian.” Dickens Affidavit, d/e 34-3 ¶ 14; Lemon Affidavit, d/e
49-3 ¶ 31. Laurie Fiorenza had participated in the District’s training of
the Comprehensive Literacy Model, with which Jason Fink was likewise
familiar, and the District, according to Mr. Lemon, was seeking to
improve literacy rates. Lemon Affidavit, d/e 49-3 ¶ 9. Christy Cox had
experience with K-3 curriculum and was formerly a literacy coach.
Dickens Deposition, d/e 34-5 at 50. According to Anne Cashman, an
elementary school principal in the District who interviewed Ms. Cox and
Plaintiff, Ms. Cox was the “best candidate” for the Berrian Elementary
School principal position. Cashman Affidavit, d/e 49-1 ¶ 10. In
contrast, Ms. Cashman stated that Plaintiff’s responses to the Ventures
for Excellence questions were “brief” and that she did not appear “wellsuited” for the position. Id. ¶¶ 18-19. Ms. Cashman also asserted in her
affidavit that Ms. Dreasler was the “best fit” for the position of Director
of the Alternative School. Id. ¶ 31. Danielle Edgar, the Principal at
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Quincy High School, who was also involved in hiring some of these
candidates, agreed that Ms. Dreasler was the “best fit” and had “new
ideas,” while Plaintiff’s responses “did not make her stand out positively
from the other candidates.” Edgar Affidavit, d/e 49-2 ¶¶ 12-14, 23.
Jason Fink’s familiarity with the Response to Intervention Model and his
knowledge of professional learning communities and the “common core”
were important considerations in his selection. See Dickens Deposition,
d/e 34-5 at 49-50.
II.
JURISDICTION & VENUE
The Court has subject-matter jurisdiction because the cause of
action arises under the Age Discrimination in Employment Act, 29
U.S.C. § 621 et seq, which is a law of the United States. 28 U.S.C. §
1331. Venue is proper in this Court because the actions giving rise to
Plaintiff’s claim took place in this judicial district and the Court has
personal jurisdiction over Defendant, whose principal place of business is
in Quincy, Illinois. 28 U.S.C. § 1391.
III.
LEGAL STANDARD
Summary judgment is proper if the movant—here, Defendant—
shows that there is no genuine issue of material fact and that Defendant
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is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a).
Defendant now bears the initial responsibility of identifying the evidence
that demonstrates the absence of a genuine issue of material fact. See
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). No genuine issue of
material fact exists if no reasonable jury could find in favor of Plaintiff,
the nonmoving party. See Brewer v. Bd. of Trs. of the Univ. of Ill., 479
F.3d 908, 915 (7th Cir. 2007). When ruling on the Motion for
Summary Judgment, this Court must consider the facts in the light most
favorable to Plaintiff, the nonmoving party, and draw all reasonable
inferences in Plaintiff’s favor. See Woodruff v. Mason, 542 F.3d 545,
550 (7th Cir. 2008).
IV.
ANALYSIS
The Age Discrimination in Employment Act of 1967 (“ADEA”)
makes it unlawful for an employer to fail or refuse to hire, to discharge or
to discriminate against an employee “because of” the employee’s age. 29
U.S.C. § 623(a)(1). To succeed on a claim under the ADEA, an
employee must show that her age was not simply one reason for the
employer’s adverse action, but that age was the “but-for cause.” Gross v.
FBL Fin. Servs., Inc., 557 U.S. 167, 176 (2009) (“[T]he ordinary
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meaning of the ADEA’s requirement that an employer took adverse
action ‘because of’ age is that age was the ‘reason’ that the employer
decided to act.”). An employee must prove discrimination using either
the direct or indirect method of proof. See Ptasznik v. St. Joseph Hosp.,
464 F.3d 691, 695 (7th Cir. 2006). Plaintiff here argues she can succeed
under both methods. Because the Court finds that Plaintiff has
demonstrated Defendant is not entitled to summary judgment under the
direct method, only that route is analyzed below.
1. Plaintiff has Shown Under the Direct Method of Proof that a
Reasonable Juror Could Find Age Discrimination
Proof under the direct method includes a “smoking gun,” such as
an explicit confession of discriminatory intent, or circumstantial evidence
that shows a discriminatory motive through a chain of inferences. Hester
v. Ind. State Dep’t of Health, 726 F.3d 942, 947 (7th Cir. 2013) (noting
that direct evidence like an outright confession is uncommon “outside
the world of fiction”); Van Antwerp v. City of Peoria, Ill., 627 F.3d 295,
298 (7th Cir. 2010)(explaining that circumstantial evidence may
establish an employer’s discriminatory motive through a long chain of
inferences). Circumstantial evidence may take many forms, including
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but not limited to: suspicious timing; ambiguous statements or behavior
directed at other employees in the protected group; evidence that the
employer treated employees outside the protected class who were
similarly situated to the plaintiff employee more favorably; and evidence
that an employee was qualified but passed over for a job in favor of one
outside of the protected class and the employer’s reason for doing so is
pretextual. See e.g., Hester, 726 F.3d at 947; Mullin v. Temco Mach.,
Inc., 732 F.3d 772, 776 (7th Cir. 2013) (finding that circumstantial
evidence supported plaintiff’s claim that he was fired because of his age).
Plaintiff seems to concede that she has not uncovered the everelusive “smoking gun” that would directly prove Defendant’s alleged
discriminatory animus. Instead, Plaintiff argues that the Defendant’s
“mosaic of fishy and suspicious” actions establish the necessary animus
required under the direct method of proof. Defendant disagrees, arguing
that the case on which Plaintiff relies for her assertion here, Cook v. Ill.
Dept. of Corrections, is incomparable to her case.
Although the Cook plaintiff’s experience at the Illinois Department
of Corrections differs from Plaintiff’s experience with the District,
Plaintiff in this case has established a chain of inferences that, taken in
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the light most favorable to Plaintiff, could lead a reasonable jury to find
in her favor. Defendant argues that unlike the Cook plaintiff, Plaintiff
here was not “constantly asked about her age and when she was going to
retire.” See Defendant’s Reply to Plaintiff’s Response, d/e 49 at 40
(citing Cook, 736 F.Supp.2d at 1197). However, the interactions
Plaintiff had with Mr. Lemon from January 2010, when she received the
negative evaluation, and June of 2010, when her contract expired and
Irving closed, is enough circumstantial evidence to show direct evidence
of age discrimination.
There is a genuine dispute about Mr. Lemon’s intentions when asking
Plaintiff whether she was planning on retiring before she received the
negative evaluation. While Plaintiff interpreted Mr. Lemon’s comments
as suggestions that she retire, Mr. Lemon asserts that he does not
remember asking her when she planned to retire and was innocently
discussing the topic of retirement because he felt they were similarly
situated. And while Plaintiff’s impression of Mr. Lemon’s comments
may not raise a genuine factual dispute on their own, neither this Court
nor a juror is required to dismiss Plaintiff’s impression altogether and
accept Mr. Lemon’s claim that he was just making casual conversation.
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See Nagle v. Vill. of Calumet Park, 554 F.3d 1106, 1117 (7th Cir. 2009)
(noting that plaintiff's subjective impression about her qualifications,
without more, did not show discriminatory intent). In short, a
reasonable juror could agree with Plaintiff that Mr. Lemon’s intention in
discussing retirement in a meeting in which she intended to discuss her
future goals—only weeks before giving her a negative review—was to
suggest that she actually retire, due to her age. And at a minimum, there
is a genuine issue of fact about whether Mr. Lemon ever asked Plaintiff
when she was going to retire.
Even if Mr. Lemon was suggesting that Plaintiff retire, however,
that alone is not enough for Plaintiff to survive summary judgment. See
Kaniff v. Allstate Ins. Co., 121 F.3d 258, 263 (7th Cir.1997) (stating
that “suggestion[s] of retirement do[ ] not rise to the level of direct
evidence of age discrimination” if the employer has an alternative
explanation for the adverse action). It is also not the only evidence
Plaintiff presents. Mr. Lemon’s comments came right before he created a
damning evaluation that criticized Plaintiff for the high truancy rates,
low test scores, and widespread behavior problems of students attending
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Irving. These issues were prevalent in the evaluation, though many
students are at Irving because of their previous problems with
attendance, academics, and behavior. Neither party disputes that fact.
And there is evidence in the record, including surveys from Irving staff
and affidavits from Ms. Harris, the former Irving counselor, and Mr.
Ellerman, the former principal at Quincy High School, that indicate this
negative evaluation could have exaggerated Plaintiff’s ability—or lack
thereof—to resolve these problems. See Shager v. Upton Co., 913 F.2d
398, 401 (1990) (noting evidence that supervisor “greatly exaggerated”
plaintiff’s deficiencies could be evidence of pretext). Generally,
testaments from supervisors or colleagues that corroborate a plaintiff’s
broad claims she was a stellar employee are insufficient to create a
genuine issue of fact. Anderson v. Baxter Healthcare Corp., 13 F.3d
1120, 1124–25 (7th Cir. 1994) (finding affidavit by former supervisor
and testimony of co-worker that plaintiff’s performance was satisfactory
and that plaintiff was not entirely responsible for mishaps insufficient to
defeat summary judgment); Dey v. Colt Const. & Dev. Co., 28 F.3d
1446, 1460 (7th Cir. 1994) (same).
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But in this case, Plaintiff vehemently contested the evaluation in a
rebuttal she submitted to the Central Office, specifically refuting many if
not all of the criticisms in the review. The affidavits of Mr. Ellerman and
Ms. Harris corroborate some of these refutations, such as the students’
use of profanity and poor performance on the annual exams. See Dey,
28 F.3d at 1460 (finding issues of fact when plaintiff submitted affidavits
by coworkers that specifically refuted facts on which employer relied to
show that plaintiff’s performance was deficient). Because Plaintiff’s
performance at Irving is Defendant’s primary justification for not hiring
Plaintiff for any of the administrative positions, genuine issues of
material fact about her performance preclude summary judgment.
Additionally, the District chose resignation over remediation when
deciding how to handle Plaintiff’s negative evaluation. Rather than place
Plaintiff on a remediation plan after the negative evaluation, according to
both parties, the District—either in correspondence or personally by Mr.
Lemon—told Plaintiff she could resign. And apparently the District
made that offer around the same time the Central Office knew Irving was
closing. Defendant argues that this resignation offer is not evidence of
discrimination because “[n]othing in this offer makes the slightest
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reference to age.” Defendant’s Reply, d/e 49 at 41. Although the offer
may not have contained an explicit reference to Plaintiff’s age, a juror
could reasonably infer that because older people retire more frequently
than their younger colleagues, this offer implicitly referenced age. Why
would the Central Office ask whether Plaintiff wanted to resign only
months before they planned to close the school? Perhaps the District
wanted to allow Plaintiff to save face and resign with dignity. See Kaniff
v. Allstate Ins. Co., 121 F.3d at 263 (7th Cir. 1997) (noting possibility
that defendant suggested retirement to plaintiff to spare plaintiff the
embarrassment of being terminated for dishonesty). Perhaps the District
wanted to ensure she would not be involved with the outsourced
program. Perhaps Mr. Lemon was simply curious about Plaintiff’s
retirement plans. See Colosi v. Electri–Flex Co., 965 F.2d 500, 502 (7th
Cir.1992) (finding that two inquiries about the employee’s retirement
shortly before the employee’s termination was not direct evidence of age
discrimination because an employer has a legitimate interest in learning
its employees’ plans for the future). A perfectly valid and legal
explanation could exist if her performance really was deficient. It is also
possible, however, that the explanation is more sinister. The Court need
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not and cannot decide these issues on summary judgment, because they
turn on the intent and credibility of Plaintiff and Mr. Lemon. See
Darchak v. City of Chic. Bd. of Educ., 580 F.3d 622, 633 (7th Cir.
2009)(“Employment discrimination cases often center on parties’ intent
and credibility, which must go to a jury unless no rational factfinder
could draw the contrary inference.”)(citations omitted).
One additional piece of evidence supports denial of Defendant’s
Summary-Judgment Motion: five out of the six administrative positions
for which Plaintiff applied went to educators much younger than she,
and a few with much less administrative experience. Because Plaintiff
has survived summary judgment using the direct method of proof, she
does not need to prove, at this stage, that the people chosen for the
positions were not only younger but also less qualified. See, e.g., Atanus
v. Perry, 520 F.3d 662, 672 (7th Cir. 2008) (explaining that plaintiff
proceeding under indirect method must establish prima facie case of
discrimination, including that those chosen for positions were younger
and equally or less qualified). However, the ages and qualifications of
those chosen six people versus Plaintiff are still relevant. See Hester, 726
F.3d at 947 (stating that evidence a qualified employee was passed over
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for a younger person and that employer’s reason is pretextual is one
category of circumstantial evidence under direct method). With the
exception of Cheryl Dreasler, those given the positions at issue in this
case were significantly younger than Plaintiff. See Diaz v. Kraft Foods
Global, Inc. 653 F.3d 582, 588 (7th Cir. 2011) (stating jury had to
resolve question of whether defendant’s decision to hire someone in same
protected class as plaintiff negated discriminatory intent). And with the
exception of Eryn Beswick, who Defendant concedes had “no previous
administrator experience” when she was hired over Plaintiff as Assistant
Principal of Quincy Junior High School, the parties dispute the
qualifications of those chosen for the positions. Defendant’s Reply, d/e
49 at 17. Neither the Court nor the jury should sit as a “super-personnel
department” that scrupulously reviews all of an employer’s hiring
decisions. Wolf v. Buss (Am.) Inc., 77 F.3d 914, 920 (7th Cir. 1996)
(internal citations omitted). The question is not: who would I, the juror,
or I, the judge, choose for these positions? Rather, the inquiry on
summary judgment is whether it is “genuinely contestable” that the
District repeatedly declined to hire Plaintiff because of her age or an
evaluation tainted by age discrimination. See Shager, 913 F.3d at 403
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(reversing district court’s grant of summary judgment to defendant after
finding material issues of fact existed that only a jury could resolve).
Plaintiff’s performance as Director of Irving, the intentions, statements,
and actions of Mr. Lemon in the winter and spring of 2010, and the
qualifications of Plaintiff and others chosen for the position are all
genuinely contestable issues for a jury to resolve.
Due to the emphasis Plaintiff’s case places on the words and
actions of Mr. Lemon, the Court will address one more argument
Defendant has raised: “there is no evidence to indicate that Mr. Lemon
personally took action to prevent Ms. Rein from being recommended for
these positions due to her age.” Defendant’s Reply, d/e 49 at 42. Mr.
Lemon was not the only person hiring or rejecting candidates for these
six administrative positions, as other administrators, a hiring committee,
and the School Board were all apparently involved. As Superintendent,
however, he was involved in the hiring process and it is possible that he
exerted some influence—either through the negative evaluation he gave
Plaintiff or otherwise—on others involved in the decision-making process.
In addition to determining whether Mr. Lemon had any discriminatory
animus, another issue is whether any alleged animus influenced the
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others involved in the decision-making process. Were the committee and
the Board a “conduit, vehicle, or rubber stamp”? Hill v. Potter, 625 F.3d
998, 1002 (7th Cir. 2010). When viewing the evidence in the light most
favorable to Plaintiff, the Court believes that a reasonable juror could
answer “Yes” to this question. Shager, 913 F.2d at 406 (stating that
whether committee that fired plaintiff was untainted or prejudiced by
supervisor’s animus was a question for trial); see also Sun v. Bd. of
Trustees of Univ. of Ill., 473 F.3d 799, 813 (7th Cir. 2007) (finding that
numerous reviews by independent committees removed the possibility
that alleged wrongdoer influenced defendant’s decision to deny plaintiff
tenure).
Because Plaintiff has shown under the direct method of proof that a
reasonable juror could find in her favor, the Court will not address the
likelihood of her success under the indirect method of proof.
V.
CONCLUSION
Genuine issues of material fact exist about Plaintiff’s performance
as Principal at Irving, the qualifications of those chosen for the
administrative positions, the intentions, actions, and statements of Mr.
Lemon in regards to Plaintiff, and Mr. Lemon’s role in hiring for the
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administrative positions. Therefore, the Court DENIES Defendant’s
Motion for Summary Judgment.
ENTERED: February 11, 2014
FOR THE COURT:
s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE
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