Collins v. North Chicago Community Unit School District 187 et al

Filing 139

MEMORANDUM Opinion and Order Signed by the Honorable Robert M. Dow, Jr on 5/13/2013. Mailed notice(tbk, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
CRANDALL COLLINS,
Plaintiff,
v.
BOARD OF EDUCATION OF
NORTH CHICAGO COMMUNITY
UNIT SCHOOL DISTRICT 187, et al.,
Defendants.

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Case No.: 10-cv-03329
Judge Robert M. Dow, Jr.

MEMORANDUM OPINION AND ORDER
Plaintiff Crandall Collins filed this lawsuit, alleging that Defendants Board of
Education for the North Chicago Community Unit School District 187, North Chicago
Community Unit School District 187, Missouri Myers, Sharon Epps, and Henrietta Graham
violated his constitutional rights when the Board failed to hire him for a vacant position
within the District. The Court previously dismissed North Chicago Community Unit School
District 187 as a defendant1 and also dismissed certain counts of Plaintiff’s complaint.
Plaintiff has since filed a second amended complaint, alleging a single count (First
Amendment violation). Defendants have moved for summary judgment [110] on Plaintiff’s
First Amendment claim. For the reasons set forth below, the Court grants Defendants’ motion
for summary judgment [110].
I.

Background
Plaintiff Crandall Collins (“Plaintiff” or “Collins”) applied for the position of human

resources director with the North Chicago Community Unit School District 187 (the “School
District”) twice, once in 2004 and once in 2009.2 In 2004, after interviewing Collins, the

1

The Court determined that the proper defendant is the North Chicago Community School Board, not
the North Chicago Community Unit School District 187. See 105 ILCS 5/10-16.7 (providing that the
board shall direct the selection, retention, and dismissal of employees).

2

The District is a public school district in Lake County.

North Chicago Community Unit School Board (the “School Board” or “Board”) selected a
different candidate to fill the position.
In the spring of 2009, the Board held elections to fill four Board seats. At the time of
this election, Defendants Missouri Myers and Henrietta Graham held two seats not up for
reelection. Defendant Sharon Epps, then a member of the Board, ran for re-election to fill one
of the four seats. Lanelle Collins, Plaintiff’s wife, ran on a ticket with two others (Kenneth
Robinson and Jill Janezich) to fill the three remaining seats. Lanelle Collins, Robinson, and
Janezich were all elected to the Board, and Defendant Epps was reelected. Sherry Murray ran
in the election but did not win. However, she was later appointed to a vacant seat on the
Board. On May 4, 2009, the newly elected Board Members were sworn in. After the election
and the swearing in of Board Members, the District Board was comprised of Kenneth
Robinson, Lanelle Collins, Sherry Murray, Jill Janezich, Henrietta Graham, Sharon Epps, and
Missouri Myers.

On many issues, the Board was divided into two competing camps,

comprised of Myers, Graham, and Epps on the one hand and Robinson, Murray, Janezich, and
Lanelle Collins on the other. Board minutes reflect this division but also reflect numerous
unanimous votes by the Board as well as votes that were not split along the noted division.
Plaintiff campaigned for his wife’s slate of candidates by passing out campaign
literature and volunteering on Election Day. Crandall Collins’ political activity was discussed
during Executive Session Board meetings on September 10, 2009 and September 29, 2009,
but only in the context of whether Collins actually campaigned for Janezich and, if so,
whether that presented a conflict of interest which would prevent Janezich from participating
in the vote for H.R. Director. Furthermore, Epps’ knowledge of Collins’ political activity was
limited to observing a dispute that he was involved in between Jill Janezich and Gloria Harper
and William King (Epps’s supporters) on Election Day.

Collins was present to assist

Janezich. Epps did not learn that the individual whom she observed (Plaintiff) was the

2

husband of a seated Board Member until after the Election. Collins did not interact with
Myers, Epps or Graham in any capacity before his wife was elected to the School Board,
although Epps and Myers observed the dispute on Election Day. Collins was not aware of
any personal arguments or disputes between Myers, Epps, Graham, and his wife.
On July 17, 2009, the position of Director of Human Resources for North Chicago
School District 187 was posted. The job description for Human Resources Director required
that the individual holding the position have a Type 75 certificate, which is a certificate that is
required of certain types of administrators in Illinois. Following the posting, the District
received a number of applications. Between July 19, 2009, and August 14, 2009, Angela
Banbury, Plaintiff, Christopher Glover, Patricia Reynolds, Angela Smith, and Nicholas
Maldonado submitted their applications for the Human Resources Director position in District
187. At the time of each of these candidates’ application, the Human Resources Director
position at District 187 required a Type 75 certification.
On August 20, 2009, the North Chicago Board of Education School Board met for a
regular Board meeting, at which the Board acted to revise the Human Resources Director job
description by removing the Type 75 requirement. According to the minutes from that
meeting, Board Member Sherry Murray made the motion to revise with Board Member Jill
Janezich seconding that motion. The motion carried by a vote of 4-2 with Board President
Kenneth Robinson, Sherry Murray, Jill Janezich and Lanelle Collins, Plaintiff’s wife, all in
favor of the removal of that requirement, and Board Members Sharon Epps and Henrietta
Graham voting against the removal. Janezich testified in her deposition that she did not even
know what a Type 75 was, but that all she knew was “that we were going to stick together. I
was grabbed in the hallway on the way to open session that we were doing to stick together
and this is how I was going to vote.” The military representative, Chief Anna Douglas, also
voted against the removal. However, the military representative vote is not counted even

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though that representative is allowed to cast a vote and give input during meetings. Board
Member Missouri Myers was absent from the August 20, 2009 meeting and therefore did not
vote on the proposal.
The discussion during the Executive Session portion of the August 20, 2009 meeting
included arguments for and against the removal. Kenneth Robinson, Sherry Murray, and
Lanelle Collins believed that the Type 75 was not required by the Illinois State Board of
Education and therefore did not need to be a job requirement for the H.R. Director. Board
Members Sharon Epps, Henrietta Graham, and Chief Anna Douglas testified that they
believed that the Type 75 certificate, which certified the individual as being able to hold the
position of Principal or School Administrator, was necessary for an H. R. Director who was
responsible for matters associated with hiring and firing teachers and helping to place staff in
the best possible positions. Missouri Myers was not present for the meeting and therefore did
not vote on the issue; however, she indicated afterward to President Robinson that she wanted
the Type 75 requirement to remain in place. After the August 20, 2009 vote to modify the
H.R. Director job description by removing the Type 75 requirement, Board Member Lanelle
Collins recused herself from the Executive Session portion of subsequent Board meetings at
which the H.R. Director position was being discussed.
According to Dr. Lauri Hakanen, the Superintendent of District 187 during the
relevant time period, a number of administrators under his direction initially screened the
applications to determine a set of candidates who would be qualified for the job and who
would be interviewed by the Board. On September 10, 2009, a special Board meeting was
conducted at which three candidates were interviewed for the H.R. Director position. The
candidates interviewed were Nicholas Maldonado, Crandall Collins and Angela Smith.
Maldonado had a Type 75 certification, but Collins and Smith did not. At the time of his
application and interview, Collins did not have any experience with the following: school

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district experience in human resources; union negotiating experience; experience in the
certification of school teachers; and experience with the No Child Left Behind Act. However,
he had several years of private sector human resources experience at Abbott Laboratories and
Allstate.
On September 16, 2009, the Board conducted a second set of interviews with
additional candidates. Board members Janezich, Epps, Myers, and Graham were present for
the second set of interviews, while Board members Robinson and Murray were unable to
make the September 16, 2009 meeting.3 The candidates interviewed included Christopher
Glover, Patricia Reynolds, and Angela Banbury. Of those candidates, Christopher Glover had
been a principal and also held an out of state certificate. Patricia Reynolds held a Type 75
certificate in Illinois and had prior school district experience, and Angela Banbury had no
administrative certificate or Type 75 certification.
Jill Janezich expressed her opinion that Crandall Collins was the best interviewee from
September 10 and that Patricia Reynolds was the best candidate interviewed on September 16.
During her deposition, Janezich stated that she liked Patricia Reynolds because she “filled the
whole page.” Similarly, Dr. Lauri Hakanen, who also was present for the September 16, 2009
interviews, thought Patricia Reynolds was the best Type 75 candidate and that Collins was the
best non-Type 75 candidate. However, Dr. Hakanen believed that the Type 75 certification
was an important requirement for an H.R. Director and he also expressed his opinion that the
Type 75 requirement should not have been removed from the H.R. Director job description.
Although Dr. Hakanen recognized that Crandall Collins was a strong candidate based on his
private sector experience as an H.R. representative, he had reservations about the appearance
of nepotism within the District, especially in light of a recent case brought by a former board
member whose wife and daughter were District employees.

During his deposition, Dr.

3

According to Robinson, he asked to reschedule the meeting, but the original date was kept.

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Hakanen stated that he thought Reynolds was the best overall candidate. Sharon Epps,
Missouri Myers, and Henrietta Graham also testified that they thought that Reynolds was the
best overall candidate.
Dr. Hakanen was asked to recommend a candidate. He prepared a memorandum
about the candidates interviewed for the Board.4 In his memorandum, Dr. Hakanen indicated
that he believed that avoiding the appearance of nepotism hiring and firing may have to be
taken into consideration by the Board Members in their voting on the husband of a sitting
Board Member, so he included a statement to that effect in his September 28, 2009
Memorandum. Dr. Hakanen stated that Patricia Reynolds was the “clear choice” of the
candidates interviewed during the September 16 meeting, given her school-districtexperienced and Type 75 certification. He also stated that Collins was determined to have the
best “non-75 interview.”
On September 29, 2009, a special meeting of the School Board took place. One of the
agenda items was a vote on the hiring of an H.R. Director, provided a consensus candidate
could be brought forward. At the meeting, the candidates for the H.R. Director position were
again discussed. Board President Kenneth Robinson attempted to determine whether there
was a consensus candidate whose application could then be voted on in open session.
Discussion of the candidates as well as Dr. Hakanen’s memorandum was part of the
Executive Session discussion. Kenneth Robinson stated that he asked Dr. Hakanen for a
recommendation as to his choice for the H.R. Director position but instead got two names
submitted for consideration.
Robinson, Janezich, and Murray cast their votes for Crandall Collins. Janezich, who
had been present for both sets of interviews, stated that she cast her vote for Crandall Collins

4

Although she recused herself from the interviews and discussions of candidates in the Executive
Session meetings of September 10, September 16 and September 28, 2009, Lanelle Collins received
Dr. Hakanen’s Memorandum, which she reviewed.

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“for [her] safety” because she though Lanelle Collins would make her “pay for the rest of
[her] life” if she did not. Lanelle Collins denies pressuring Janezich to vote for her husband.
Robinson stated that he voted for Collins because he believed Collins to be the best candidate
of the candidates that he interviewed.

Myers, Graham, and Epps, along with military

representative Chief Anna Douglas, voted for Reynolds. Epps and Myers testified that they
preferred Reynolds as a candidate because she had a Type 75 certificate, interviewed well,
and had a school district background. Graham testified that she voted for Reynolds because
she felt that Reynolds was the best qualified candidate for the H.R. position and not because
of Plaintiff’s political activities. Douglas’s vote was not counted, resulting in a 3-3 deadlock.
Prior to the September 29, 2009 meeting, Janezich contacted a representative from the
Illinois State Board of Education (ISBE) to inquire as to what would happen if there was a 3-3
deadlock on the Board. Janezich learned that a 3-3 deadlock would result in a stalemate that
would require no action other than the tabling of the issue. When it became obvious to Board
President Robinson that the vote was deadlocked with three votes in favor of Crandall Collins
and three votes in favor of Patricia Reynolds, there was a unanimous agreement to table the
hiring of the H.R. Director.
As a result of her belief that Plaintiff campaigned for Janezich, Epps raised a possible
conflict of interest during the Executive Session. At the September 29, 2009 Board meeting,
it was decided that a legal opinion would be sought to determine whether Jill Janezich did
indeed have a conflict of interest which prevented her from casting a vote for the H.R.
Director candidate position. Robinson testified that the legal opinion was that Jill Janezich
was not prohibited from voting by way of a conflict of interest. Furthermore, Janezich
refused to recuse herself because she did not believe that she had a conflict of interest.
Thereafter, no further H.R. candidates were considered in 2009. At the September 29,
2009 Board meeting, no one sought to place Collins’ application on the Open Session agenda

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and thus none of the Board Members, including Graham, Myers or Epps voted against placing
Collins’ application on the Open Session agenda. Further, none of the Board Members
directly sought to declare Crandall Collins’ application ineligible (or otherwise block
Plaintiff’s candidacy) because he campaigned for his wife or others on her ticket during the
April 2009 election, although the Board did seek a legal opinion about whether Janezich had a
conflict of interest. Myers, Epps, and Graham never stated that they were withholding a vote
for Collins or casting their vote for Reynolds due to Collins’ political affiliation or campaign
work. Rather, according to Collins, the source of his information regarding the allegations of
discriminatory comments made by Defendants was his wife, Lanelle.
Lanelle Collins testified that she did not attend any of the Executive Session meetings
at which the H.R. Director candidates were interviewed or discussed in any fashion, including
the meeting of September 29, 2009, at which the issue of hiring the H.R. Director was tabled
and has no knowledge from any source as to what was discussed in Executive Session on
September 29, 2009. Additionally, Lanelle Collins testified that she had never (at least up
until the time of her deposition) listened to any of the audio recordings from any of those
meetings. Dr. Lauri Hakanen never heard politics discussed at all during Executive Sessions.
In May 2011, the District 187 School Board hired Martha Gutierrez as H.R. Director. Ms.
Gutierrez does not have a Type 75 certificate. The minutes reflect that the vote to hire
Gutierrez passed with “yes” votes from Janezich, Murray, James Baldwin, and Kenneth
Robinson; Board Members Epps, Graham, and Collins were absent.
On April 30, 2010, Plaintiff brought a ten-count complaint against the School District,
the School Board, Epps, Myers, Graham, and Roycealee Wood in the Illinois Circuit Court
for the Nineteenth Judicial Circuit in Lake County, Illinois. On June 1, Defendants removed
the case to this Court and moved to dismiss Plaintiff’s initial complaint. In response, Plaintiff
filed an amended complaint, setting forth eight counts. Defendants again moved to dismiss

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all counts of the amended complaint, save for Plaintiff’s § 1983 claim for violation of the
First Amendment, which was encompassed in Counts V and VI, and the Court granted
Defendants’ motion. Plaintiff then filed a one-count second amended complaint, alleging
only a First Amendment violation.
II.

Summary Judgment Standard
Summary judgment is proper 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). To avoid summary judgment, the opposing party must go beyond the pleadings and
“set forth specific facts showing that there is a genuine issue for trial.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 250 (1986) (internal quotation marks and citation omitted). A
genuine issue of material fact exists if “the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Id. at 248. The party seeking summary judgment
has the burden of establishing the lack of any genuine issue of material fact. See Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986). Summary judgment is proper against “a party who
fails to make a showing sufficient to establish the existence of an element essential to that
party’s case, and on which that party will bear the burden of proof at trial.” Id. at 322. The
party opposing summary judgment “must do more than simply show that there is some
metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio
Corp., 475 U.S. 574, 586 (1986). “The mere existence of a scintilla of evidence in support of
the [opposing] position will be insufficient; there must be evidence on which the jury could
reasonably find for the [opposing party].” Anderson, 477 U.S. at 252.

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III.

Analysis
Plaintiff’s second amended complaint alleges that his First Amendment rights were

violated when he was not hired by the District Board for the H.R. Director position posted in
2009. Plaintiff alleges that Defendants failed to hire him for the position due to his campaign
activities. Specifically, Plaintiff alleges in his second amended complaint that Defendants
Myers, Epps and Graham sought to add a Type 75 Administrative Certificate requirement to
the H.R. Director position (a requirement that Plaintiff could not satisfy) because of his
campaigning, which precluded him from being hired. He also alleges that Defendants Myers,
Epps, and Graham sought to declare his application ineligible and voted against placing his
application on the Open Session agenda for vote at a District Board Meeting, also because of
his campaigning. As set forth below, because discovery has developed the factual background
and gutted several of Plaintiff’s specific allegations, Plaintiff’s First Amendment claim has
been trimmed simply to a claim that Defendants failed to hire him because of his support of
his wife’s slate during the school board elections.
In order to state a claim under § 1983, Plaintiff must allege that the Defendants were
acting under color of state law when they deprived him of a constitutional right. See Estate of
Sims ex rel Sims v. County of Bureau, 506 F.3d 509, 514 (7th Cir. 2007) (citing Christensen v.
County of Boone, Illinois, 483 F.3d 454, 457 (7th Cir. 2007)). “Section 1983 is not itself a
source of any substantive rights, but instead provides the means by which rights conferred
elsewhere may be enforced.” Bublitz v. Cottey, 327 F.3d 485, 488 (7th Cir. 2003) (citing
Ledford v. Sullivan, 105 F.3d 354, 356 (7th Cir. 1997)). To demonstrate a § 1983 violation,
Plaintiff must do more then make a general allegation that his constitutional rights were
violated; he must demonstrate a deprivation of a specific constitutional right. See Trautvetter
v. Quick, 916 F.2d 1140, 1148 (7th Cir. 1990) (citing Wilson v. Civil Town of Clayton, 839

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F.2d 375, 379 (7th Cir. 1988)).

Plaintiff brings a § 1983 claim for violations of his

constitutional right to free speech.
The First Amendment prohibits a state employer from terminating the employment of
a worker on the basis of his political beliefs unless political affiliation is an appropriate
requirement for the position. See Moss v. Martin, 614 F.3d 707, 710 (7th Cir. 2010). The
Seventh Circuit recently clarified that in presenting a prima facie case of First Amendment
retaliation at summary judgment, a plaintiff need only show evidence that his speech was a
“motivating factor,” rather than the “but for” cause, of an adverse employment action. Greene
v. Doruff, 660 F.3d 975, 977 (7th Cir. 2011); see also Kidwell v. Eisenhauer, 679 F.3d 957, at
964–65 (7th Cir. 2012) (discussing Greene). A prima facie case requires evidence that: (1)
Plaintiff was engaged in activity protected by the First Amendment, (2) he suffered an
adverse action that would likely deter free speech, and (3) the First Amendment activity was a
motivating factor in the decision to retaliate. See Redd v. Nolan, 663 F.3d 287, 294–95 (7th
Cir. 2011); Spiegla v. Hull, 371 F.3d 928, 941–43 (7th Cir. 2004). Greene explains that a
“motivating factor” is one that is a “sufficient condition” for an adverse action. Greene, 660
F.3d at 978–79. If Plaintiff furnishes a prima facie case, the burden shifts to Defendants to
rebut the causal inference raised by Plaintiff’s evidence.

If Defendants fail to counter

Plaintiff’s evidence, then Defendants’ retaliatory actions are considered a “necessary
condition” of Plaintiff’s harm, and Plaintiff has established the but-for causation needed to
succeed on his claim. Id. at 980.
There simply is no direct evidence of unlawful retaliation in this case (see Rudin v.
Lincoln Land Cmty. Coll., 420 F.3d 712, 720 (7th Cir. 2005) (“Direct evidence is evidence
which, if believed by the trier of fact, will prove the particular fact in question without
reliance upon inference or presumption”), and thus Plaintiff must point to enough
circumstantial evidence that could support a reasonable jury finding that Plaintiff was not

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hired because he campaigned for his wife. Circumstantial evidence is evidence from which a
trier of fact may infer that retaliation occurred. See id. at 720–21. “Circumstantial evidence
may include suspicious timing, ambiguous oral or written statements, or behavior towards or
comments directed at other employees in the protected group.” Long v. Teachers' Retirement
Sys. of Ill., 585 F.3d 344, 350 (7th Cir. 2009) (citation omitted). Importantly, regardless of
which type of evidence is offered, “[t]o demonstrate the requisite causal connection in a
retaliation claim, [a] plaintiff[ ] must show ‘that the protected activity and the adverse action
are not wholly unrelated.’” Sauzek v. Exxon Coal USA, Inc., 202 F.3d 913, 918 (7th Cir.
2000) (quoting Hunt–Golliday v. Met. Water Reclamation Dist., 104 F.3d 1004, 1014 (7th
Cir. 1997)).
The first glaring problem for Plaintiff is that the allegations in his complaint stand in
stark contrast to the factual record in this case. The undisputed evidence in the record
establishes that the Board actually voted to remove the Type 75 administrative certification
requirement, which Plaintiff did not have, after Plaintiff submitted his application, rather than
adding a Type 75 requirement in an effort to disqualify Plaintiff. Thus, the Board’s actions
actually aided Plaintiff’s bid to become H.R. Director. Additionally, there was not a vote
over whether his application should be placed on the Open Session agenda. Instead, the
Board voted on whether a consensus candidate could be presented to the Open Session, and,
when the Board split on Collins and Reynolds for the position of H.R. Director, a motion to
table the hiring of the position was voted on and approved unanimously. Thus, despite
Plaintiff’s allegations to the contrary, neither the District Board nor the individual Defendants
voted to add a Type 75 requirement or declare Plaintiff’s application invalid; similarly, a vote
was never taken to not place his application on the Open Session and the Board unanimously
voted to table the hiring of the H.R. Director until a later date. These undisputed facts
severely undercut, if not completely gut, Plaintiff’s First Amendment claim.

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In an effort to overcome evidence in the record showing that the voting Board
members were simply split between two different candidates for the H.R. Director position—
one candidate with substantial private sector experience and one candidate with a Type 75
certification and substantial school district experience—Plaintiff attempts to draw inferences
from the record that improper retaliation was the motivation for Defendants’ decision not to
vote for Plaintiff. Plaintiff first contends that an election day dispute between Board member
Janezich and former Board member Gloria Harper, which resulted in Plaintiff interceding to
help Janezich, somehow resulted in Defendants taking adverse action against him. However,
there simply is no factual basis to support this contention. Even assuming that there existed
personal animus between Lanelle Collins’ slate and Gloria Harper, Plaintiff has not
demonstrated a sufficient nexus between those issues, real or suggested, and Defendants. In
fact, the record is contrary to Plaintiff’s argument in several respects. First, Gloria Harper did
not even run against Plaintiff’s wife. Second, Collins did not interact with Myers, Epps or
Graham in any capacity before his wife was elected to the School Board, nor was Collins
aware of any personal arguments or disputes between Myers, Epps, Graham, and his wife.
Finally, the most that can be gleaned from the record is that Epps and Myers observed the
dispute on Election Day. The fact that two Defendants may have observed—but were not
involved in—the confrontation does not provide a sufficient nexus between Plaintiff’s
campaigning activities and Defendants’ decision to vote for Reynolds over Plaintiff.
Plaintiff also highlights evidence in the record that he was part of an initial pool of
candidates (one of three) presented to the District Board for consideration for the H.R.
Director position on September 10, 2009. As evidence of retaliation, Plaintiff asserts that
Defendants Myers, Epps, and Graham asked Superintendent Hakanen to “expand the pool of
people from which to choose” at this meeting. However, a review of the citation to the record
relied on by Plaintiff reveals that it does not support the position that Myers, Epps, or Graham

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specifically made this request. Rather, Dr. Hakanen stated only that “the Board” wanted to
expand the pool of people from which to choose. And, even assuming that Myers, Epps, and
Graham did request to see additional candidates, it was an action agreed to by the Board as a
whole and nothing points to any discriminatory motive. Instead, the reasonable inference is
that the Board wanted to interview additional candidates with more school district experience.
In short, the record does not support the inference that at Myers, Epps and Graham acted with
improper intent in requesting additional candidates, even assuming that they made the request.
Seeking to interview a candidate with both a Type 75 certification and substantial school
district experience for the position of H.R. Director of District 187 does not approach being
an unreasonable (or discriminatory) request.
Plaintiff next argues that the testimony of Epps, Myers, and Graham that they favored
candidate Patricia Reynolds, whom they believed to be more qualified because of her school
district experience and credentials (Reynolds held a Type 75 certification), was pretext for
their animus toward Plaintiff. Plaintiff comes to this conclusion by arguing that the asserted
“rationale” is contradicted by evidence in the record showing that Graham, Epps, and Myers
voted for Martha Gutierrez, who does not hold a Type 75 Certificate, as an H.R. Director in
2011.

This argument not only ignores Defendants’ other stated reasons for preferring

Reynolds—she had substantial school district experience and interviewed well—but also
ignores record evidence that establishes that Myers was not even a Board member in 2011
and that neither Graham nor Epps was present at the meeting where Gutierrez was voted on
and hired.
Additionally, the record establishes that Navy representative Chief Anna Douglas also
favored Reynolds because she felt that Reynolds was a more qualified candidate. And,
although Janezich voted for Collins, she testified in her deposition that Reynolds “filled the
whole page” and that she would have voted for her had it not been for her relationship with

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Plaintiff’s wife.5 Finally, Dr. Hanaken’s memorandum identified Collins and Reynolds as the
top candidates, but then encouraged the Board to consider the appearance of nepotism in
making its decision—a consideration which only cut against Plaintiff’s candidacy.
In further support of his argument that Defendants were motivated by a retaliatory
animus, Plaintiff cites to the affidavit and deposition testimony of Lanelle Collins to support
his contention that in 2011 Epps called to apologize to Lanelle Collins for not hiring Plaintiff
in 2009 because he was the most qualified. The affidavit of Lanelle Collins is contrary to her
deposition testimony concerning the subject telephone call.

In her deposition, Lanelle

testified that Epps said she was sorry that Collins was not hired on the basis of not having a
Type 75 certification because the Board eventually hired someone without a Type 75. In
contrast, the later-filed affidavit states that Epps said she was sorry that Collins was not hired
because he was the most qualified. To the extent that statements in an affidavit contradict
deposition testimony, the Court will not consider the affidavit in ruling on the summary
judgment motions. See Buckner v. Sam's Club, Inc., 75 F.3d 290, 292 (7th Cir. 1996) (“As a
general rule, the law of this circuit does not permit a party to create an issue of fact by
submitting an affidavit whose conclusions contradict prior deposition or other sworn
testimony”); see also Patterson v. Chicago Ass'n for Retarded Citizens, 150 F.3d 719, 720
(7th Cir. 1998). Lanelle’s affidavit, claiming that Epps stated that Plaintiff was “more
qualified,” despite her prior deposition testimony that the decision came down to the Type 75
certification, is precisely the type of self-serving affidavit that the case law cited above
forbids. See Slowiak v. Land O'Lakes, Inc., 987 F.2d 1293, 1295 (7th Cir. 1993) (finding that
“[s]elf-serving affidavits without factual support in the record will not defeat a motion for

5 It is not lost on the Court that Plaintiff brings this lawsuit seeking to recover for First
Amendment retaliation when the record contains direct evidence that each member of his wife’s
ticket voted for him (and to remove the Type 75 certification, which would have been an
obstacle to his hiring) and that one of those Board members (Janezich) testified that she felt
pressured by Plaintiff’s wife to do so because they were on the same ticket and were going to
“stick together.”

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summary judgment”). To the extent that the affidavit—which was drafted after Lanelle
Collins’ deposition and after Defendants moved for summary judgment—conflicts with the
deposition testimony, it will not be considered. The deposition testimony does not indicate a
retaliatory animus; rather, the deposition testimony simply indicates that Epps was sorry that
one of the Board’s stated reasons for not hiring Collins did not prohibit a future Board (minus
any Defendants) from hiring Gutierrez. However, as set forth previously, Epps did not vote to
hire Gutierrez, so this fact is of little import.
Given the record evidence, Plaintiff’s argument can be best summed up as follows: he
was the only qualified candidate, he should have been hired, and the failure of the Board to
reach a consensus vote for him amounts to an adverse employment action. Put another way,
Plaintiff seems to suggest that District 187 should have decided to forego the entire process of
taking applications and interviewing candidates and simply hired him for the job. Having
failed to identify suspicious timing, ambiguous oral or written statements, or suspect behavior
towards or comments directed at Plaintiff, the result urged by Plaintiff leads to the illogical
conclusion that any Board member who did not vote for Collins would be found to have acted
adversely to him if they did anything but vote for him.

Simply put, Plaintiff was not

“entitled” to be the District 187 H.R. Director merely because he was qualified. The very
reason for the screening and interviewing was to further a hiring “process,” which by
necessity includes a competition between multiple candidates.

Aside from his own

assumptions about the process, the factual record in this case fails to establish that without
political animosities, Plaintiff would have been hired for the job. Rather, there is ample
evidence in the record that Plaintiff was not hired because another qualified candidate stood in
his way—a candidate that had a Type 75 certification (deemed important by four Board
member, including non-voting member Douglas, and the superintendent) and extensive school
district experience, who interviewed well by all accounts, and who was supported by half of

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the voting members of the Board, a non-voting member, and the superintendent. Thus,
Plaintiff has failed to demonstrate that his campaign activities motivated the Board’s decision
to table the hiring decision in 2009 or to hire Gutierrez in 2011 and he has similarly failed to
demonstrate any basis for concluding that Defendants’ stated reasons for not hiring Plaintiff
were pretextual.
IV.

Conclusion
For the foregoing reasons, the Court grants Defendants’ motion for summary

judgment [110]. Judgment will be entered in favor of Defendants and against Plaintiff.

Dated: May 13, 2013

_________________________________
Robert M. Dow, Jr.
United States District Judge

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