Ortega v. Chicago Board of Education/Chicago Public Schools et al
Filing
109
MEMORANDUM Opinion and Order: For the reasons stated, Defendants' motion for summary judgment 74 is granted with respect to Ortega's ADA failure to accommodate claims and denied with respect to her disparate treatment and retaliation claims. The parties are directed to contact this Court's courtroom deputy to schedule a status within 30 days of this Order. Signed by the Honorable Thomas M. Durkin on 6/30/2015:Mailed notice(srn, )
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
Linda Ortega
Plaintiff,
v.
Chicago Public School of
the Board of Education of
the City of Chicago and
Adelfio Garcia.
Defendants.
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No. 11 C 8477
Judge Thomas M. Durkin
MEMORANDUM OPINION AND ORDER
Plaintiff Linda Ortega filed this lawsuit against her former employer, the
Chicago Board of Education 1 (the “Board”), and the principal of the school where
she was a teacher, Adelfio Garcia (“Principal Garcia”), in his individual capacity,
alleging discrimination and retaliation claims against both defendants in violation
of the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. § 12101, et seq.
(“Count IV”). R. 37. Defendants ask the Court to grant summary judgment in their
favor. R. 74. For the reasons discussed below, Defendants’ motion for summary
judgment is granted in part and denied in part.
Plaintiff names the Chicago Public School of the Board of Education of the City of
Chicago as one of the defendants. The Court references that body’s more commonly
used title—Chicago Board of Education—in the memorandum opinion, but it refers
to the same party.
1
Background
I.
Local Rule 56.1
Before discussing the underlying facts, the Court must first address the
parties’ numerous failures to comply with Local Rule 56.1.
A.
Ortega’s Response to Defendant’s2 Local Rule 56.1 Statement
Local Rule 56.1 requires a party seeking summary judgment to file a
statement of material facts, submitted as short numbered paragraphs containing
citations to admissible evidence. L. R. 56.1(a); see also Ace Hardware Corp. v.
Landen Hardware, LLC, 883 F. Supp. 2d 739, 741 (N.D. Ill. 2012). Local Rule 56.1
also requires the opposing party to either admit or deny each paragraph and cite to
its own supporting evidence. L. R. 56.1(b)(3)(A). As a result, any facts that a party
improperly purports to controvert in its Local Rule 56.1 response are deemed
admitted. Hinton v. USA Funds, No. 03 C 2311, 2005 WL 730963, at *1 n. 2 (N.D.
In her response brief, Ortega concedes that the claims against Garcia “are
redundant and may be dismissed.” R. 95 at 19. Garcia, therefore, is dismissed as a
defendant in this case and the Court refers to a singular “Defendant”—the Board—
throughout the opinion. Defendant claims in reply that Ortega fails to address its
argument that the ADA claims against Garcia in his individual capacity should be
dismissed because the ADA does not permit individual liability. Even if Ortega’s
aforementioned concession did not encompass the individual claims against Garcia
under the ADA, Ortega’s failure to respond constitutes waiver. Woods v. Clay, No.
01 C 6618, 2005 WL 43239, at *16 (N.D. Ill. Jan. 10, 2005) (finding plaintiffs waived
any argument in opposition when they failed to respond to defendants’ argument on
summary judgment) (citing Arendt v. Vetta Sports, Inc., 99 F.3d 231, 237 (7th Cir.
1996)). Further, it is “well-settled in this Circuit that both the ADA and Title VII
provide only for employer liability, not individual liability.” Brantley v. Ameritech
New Media, No. 04 C 240, 2004 WL 1403757, at *2 (N.D. Ill. June 22, 2004) (citing
Silk v. City of Chicago, 194 F.3d 788, 797 n. 5 (7th Cir. 1999)).
2
2
Ill. Mar. 30, 2005) (citing Wilkins v. Riveredge Hosp., No 02 C 9232, 2004 WL
906010, at *2 n. 3) (N.D. Ill. Apr. 26, 2004)).
Many of Ortega’s responses to Defendant’s Rule 56.1 statement contain
allegations that are unsupported by citations to the record. While the Court draws
all inferences in favor of the non-moving party, an adequate rebuttal of a supported
assertion of fact requires a citation to specific support in the record; an
unsubstantiated denial is not adequate. Groshon v. Trans Union, LLC, No. 12 C
7591, 2014 WL 683747, at *3 (N.D. Ill. Feb. 21, 2014). The consequence of Ortega’s
failure to comply with Local Rule 56.1 is that her responses without citation to the
record are disregarded by the Court, and the Defendant’s factual allegations to
which they are directed are deemed admitted. 3 De v. City of Chicago, 912 F. Supp.
2d 709, 712-13 (N.D. Ill. 2012) (citing L.R. 56.1(b)(3)(C) (“All material facts set forth
in the statement required of the moving party will be deemed to be admitted unless
controverted by the statement of the opposing party.”)).
Pursuant to Rule 56.1, the party opposing summary judgment must also give
“a concise response” to each of the movant’s statements. L. R. 56.1(b). Bennett v.
Unitek Global Servs., LLC, No. 10 C 4968, 2013 WL 4804841, at *3 (N.D. Ill. Sept.
9, 2013). Lengthy recitations of additional facts in Ortega’s responses are not
proper. For example, Ortega’s response to Paragraph 13 of Defendant’s statement of
facts is nearly three full pages composed of four paragraphs. Such a response is
Accordingly, the Court disregards the following responses to Defendant’s
statement of facts for failure to comply with Local Rule 56.1: Pl. 56.1 Resp. (R. 92-2)
¶¶ 16 (first sentence), 18, 19, 30, 33, 41 (first sentence), 42, 48.
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improper and will not be considered. 4 Certain of Ortega’s Local Rule 56.1(b)(3)(B)
statements also assert facts that are not fairly responsive to the corresponding
paragraphs of Defendant’s Local Rule 56.1(a)(3) statement. As such, the Court
disregards the additional facts contained therein and deems the Defendant’s facts
admitted. 5 See id. at *4; Flores v. Giuliano, No. 12 C 162, 2014 WL 3360504, at *2
(N.D. Ill. July 9, 2014).
Relatedly, “[f]acts presented only in response to a defendant’s statement of
facts, but not in the plaintiff’s own statement of additional facts are improper
because the defendant has no mechanism to reply or otherwise dispute them.”
Wilcox v. Allstate Corp., No. 11 C 814, 2012 WL 6569729, at *5-7 (N.D. Ill. Dec. 17,
2012) (citing Woods v. Von Maur, Inc., 837 F. Supp. 2d 857, 863 (N.D. Ill. 2011)).
Therefore, any additional factual assertions contained within the paragraphs of
Ortega’s response to Defendant’s 56.1 statement will not be considered as facts
“affirmatively demonstrating why summary judgment should be denied.” Wilcox,
2012 WL 6569729, at *6 (quoting Woods, 837 F. Supp. 2d at 863). However, they are
properly before the Court for the limited purpose of determining the basis for
Ortega’s denial of Defendant’s factual assertions. Id. (“[u]sing such evidence to
directly dispute [the defendant’s] fact is fine . . . .” (citing Woods, 837 F. Supp. 2d at
873)).
The Court also disregards those portions of other responses that rely on Ortega’s
response to paragraph 13. Pl. 56.1 Resp. ¶¶ 14-15.
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5
See Pl. 56.1 Resp. ¶¶ 41, 44, 53.
4
Ortega further responds to certain statements of fact by claiming that she
can “neither admit nor deny” them or “has insufficient knowledge” to admit or deny.
This type of response is inappropriate at the summary judgment stage as it neither
admits nor denies Defendant’s facts and is unsupported by citations to the record.
See Ace Hardware, 883 F. Supp. 2d at 742-43; Pl. 56.1 Resp. ¶¶ 13, 29 (R. 92-2). To
the extent that Ortega so responds in paragraphs 13 and 29, Defendant’s
corresponding facts are deemed admitted insofar as they are supported by the
record. Ace Hardware, 883 F. Supp. 2d at 742-43 (citing Marchman v. Advocate
Bethany Hosp., No 04 C 6051, 2006 WL 1987815, at *6 (N.D. Ill. July 12, 2006)).
Additionally, Ortega’s responses objecting to the relevance of the stated facts
do not constitute denials. Wilcox, 2012 WL 6569729, at *5-7 (citing Ammons v.
Aramark Uniform Servs., Inc., 368 F.3d 809, 818 (7th Cir. 2004) (non-moving
party’s assertion that allegations in movant’s 56.1 statement were “irrelevant” does
not excuse the nonmoving party from “at least indicating that it agrees with or
denies the allegation”)). Those facts will be deemed admitted. 6
B.
Ortega’s Statement of Additional Facts
Defendant objects to several of Ortega’s statements of additional facts for
failure to comply with Rule 56(c) of the Federal Rules of Civil Procedure and Rule
56.1 of the Local Rules. R. 104. Specifically, Defendant argues that certain facts are
not supported by admissible record evidence. See id. ¶¶ 4, 7, 22, 29, 38. Moreover,
Defendant claims Ortega improperly cites to material not provided to the Court in
6
See Pl. 56.1 Resp ¶¶ 36, 40.
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support of certain facts. “[T]he nonmovant’s statement of additional facts, must ‘be
supported by specific references to the record.’” De, 912 F. Supp. 2d at 712-13
(quoting Malec v. Sanford, 191 F.R.D. 581, 584 (N.D. Ill. 2000)). The Court does not
accept Ortega’s factual assertions as being supported when the record lacks the
cited material. 7 Facts citing material not provided to the Court, along with those
unsupported by any reference to the record, will be disregarded.
Ortega’s statement of additional facts also includes improper argumentative
characterizations of facts. For example, Ortega states that Principal Garcia asked
Ortega to complete assignments that were “not even possible” and that Principal
Garcia made an “impossible” request of Ortega. See Pl. Addt’l. 56.1 ¶ 6 (R. 92-2)8.
The Court will disregard this type of argumentative language as it is improper. Ace
Hardware, 883 F. Supp. 2d at 743.
C.
Defendant’s Response to Ortega’s Rule 56.1 Statement of Facts
In several of Defendant’s responses to Ortega’s Rule 56.1 statement of
additional facts, Defendant states that it “do[es] not dispute that [the witness]
testified as stated.” See Def. 56.1 Resp. ¶¶ 1, 2, 3, 5, 8, 9, 10, 14, 16, 17, 21, 23 (R.
104). However, “[i]f a party disputes a statement, it must point to specific evidence
On multiple occasions, Ortega cites to exhibits that are not attached as “subject to
Protective Order,” without explaining why she did not seek leave to file them under
seal or did not otherwise seek to submit them under a protective order for summary
judgment review. See Pl. 56.1 Resp. ¶¶ 29, 31, 34, 36. The portions of these
responses citing to documents outside the record are disregarded by the Court.
7
Ortega’s response to Defendant’s Local Rule 56.1 statement of fact has the same
docket number (R. 92-2) as her Local Rule 56.1 additional statement of facts. For
distinction, the Court will refer to her additional statement of facts as Pl. Addt’l
56.1.
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in the record to support its contention. Otherwise, that statement is deemed
admitted. Gross v. Radioshack Corp., No. 04 C 4297, 2007 WL 917387, at *6 n.11
(N.D. Ill. Mar. 26, 2007) (citing L. R. 56.1(b)(3)). Thus, the facts to which Defendant
so replies will be admitted. 9 Id. (admitting facts where, defendant, in its local rule
response, did not specifically deny that statements were made and instead
responded, “[the witness] so testified.”) .
In sum, based on the Court’s findings, the Court disregards Ortega’s
responses (or the portions described herein) to Paragraphs 6, 13, 14, 15, 16, 18, 19,
29, 30, 31, 33, 34, 36, 40, 41, 42, 44, 47, 48, 53 of Defendant’s statement of facts and
deems the facts admitted. Similarly, the Court disregards Defendant’s responses to
Paragraphs 1, 2, 3, 5, 8, 9, 10, 14, 16, 17, 21, 23 of Ortega’s statement of additional
facts and deems the facts admitted.
II.
Background Facts
Ortega began working for the Board in 1998. Def. 56.1 ¶ 1. In February 2001,
she started working full time at Hedges Elementary School (“Hedges”) in Chicago.
Id. Principal Garcia was employed by the Board for 18 years. Id. ¶ 2. He became
Principal of Hedges in July 2006. Id. For purposes of this motion, Defendant does
not dispute that Ortega had a left-arm paralysis disability at the time of the events
in this case. R. 75 at 4. Pl. Addt’l. 56.1 ¶¶ 7.
For the 2008-09 school year, Hedges had “departmentalized” classes for
students in the middle school grades (grades six through eight). Def. 56.1 ¶ 9. The
The same goes for Ortega’s response to Defendant’s 56.1 ¶ 47, where she
“[a]dmit[s] this is what the board claims.”
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classes are “departmentalized” in that teachers teach specific subjects, such as
language arts, mathematics, science, and social studies, 10 instead of teaching all
subjects to a particular class of students. Id. ¶ 10. Principal Garcia assigned four
teachers to teach sixth graders for the 2008-09 school year. Id. ¶ 11. Ortega taught
language arts; Brian Cerda taught social studies, Alejandro Perez taught math; and
Linda Smith taught science. Id. Ortega taught all of the language arts classes that
year. Pl. Addt’l. 56.1 ¶ 8. For the subject of language arts, teachers were to grade
students in five areas: (1) Reading in the English Language Standards (“ESL”)or
Reading in the non-English Language Standards (for example Spanish); (2) Writing
Standards; (3) Listening Standards; (4) Speaking Standards; and (5) Research
Standards. Def. 56.1 ¶ 37. This specific grading criteria did not apply to
mathematics, social studies or science. Id. ¶ 38.
During that same year, Principal Garcia had a different system for the
seventh and eighth grade teachers at Hedges. Id. ¶ 12. Each of the seventh and
eighth grade teachers taught two subjects. Id. They all taught language arts, in
addition to one of three other core subjects—science, mathematics, or social studies.
Id.
Lead Literacy Coordinator
In 2008, Ortega was working as the Lead Literacy Coordinator at Hedges. Id.
¶ 26. As a Lead Literacy Coordinator, Ortega’s job duties included observing teacher
Both the terms “social studies”’ and “social science” are used to describe this
subject matter throughout the record and briefing on the motion for summary
judgment. The Court uses them interchangeably as any distinction is irrelevant for
purposes of this opinion.
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instruction, giving feedback, and turning in required paperwork. Id. ¶ 28. As the
Lead Literacy Coordinator, Ortega was supposed to submit a weekly schedule of her
activities to Principal Garcia. Id. ¶ 33. As a principal, Principal Garcia was the
“instructional leader” of the school, which entailed supervising the Lead Literacy
Coordinators. R. 76, Ex. D at 20:17-21:13. If principals could not be present during
observations that the Lead Literacy Coordinators conducted, they had to be part of
the pre- and post-conference meetings with the teachers. Def. 56.1 ¶ 29. Therefore,
Lead Literacy Coordinators had to share their pre- and post-conference notes with
their principals so that the principals would know what the Lead Literacy
Coordinators were working on with the teachers. Id. ¶ 30. Ortega “often” submitted
schedules that did not contain enough detail to support her time in the classrooms
observing other teachers. Id. ¶ 33. In January 2008, Principal Garcia requested
additional information from Ortega regarding her weekly schedule and requested a
copy of the pre- and post-observation notes she took while in the teachers’
classrooms. Id. ¶¶ 26, 27 & 33.
During the 2007-08 school year, Wendy Olesky was the reading coach for a
section of the Chicago Public Schools (“CPS”), which included Hedges. Id. ¶ 28. The
reading coach monitored and coached Lead Literacy Coordinators in each school. Id.
Olesky worked with Ortega during that time. Id. From time to time, Olesky made
requests to Principal Garcia for paperwork from Ortega that was due to her. Id. ¶
31. This paperwork reflected what Ortega was doing in the classroom and provided
insight as to whether Olesky needed to provide more coaching to Ortega. Id.
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Principal Garcia forwarded Olesky’s requests to Ortega and followed up with her on
those requests. Id. ¶ 32.
Moving Books and Supplies
Another sixth grade teacher at Hedges, Alejandro Perez, testified that there
were instances when Ortega would ask Principal Garcia for “help in, for instance,
getting materials to her classroom.” Pl. Addt’l. 56.1 ¶ 17. Principal Garcia “would
tell her to get the help however she could.” Id. In November 2007, Ortega asked
Principal Garcia for help moving books and school supplies. Def. 56.1 ¶ 23. Ortega
received the requested assistance two months later when Principal Garcia
instructed an assistant principal to create a sign-in sheet for student helpers to help
all teachers with small projects. Id. ¶ 25.
At-Risk Student Intervention Lists
In early 2009, third to eighth grade teachers at Hedges were required to
compile a list of students who were at risk of failing and to describe the
interventions being used to help them. Id. ¶ 40. In January or February of 2009, all
of the teachers in the sixth grade, including Ortega, asked Principal Garcia for
additional time to complete their lists. Pl. Addt’l. 56.1 ¶ 15; Def. 56.1 ¶ 41. Perez
observed Ortega ask for more time to complete her list of student interventions
because of her left arm paralysis. Pl. Addt’l. 56.1 ¶ 16. Principal Garcia’s response
to Ortega was “just get it done.” Id. Principal Garcia gave all of the teachers more
time—until the end of the week—to complete their reports. Def. 56.1 ¶ 41; Pl.
Addt’l. 56.1 ¶ 15.
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May 8, 2009 Cautionary Notice
On April 20, 2009, Principal Garcia forwarded Ortega a letter from a parent
complaining about her child’s language arts grades and homework that Ortega had
given to the student. Id. ¶ 43. Principal Garcia notified Ortega that a meeting would
be scheduled with the parent and told Ortega to have the necessary documents to
support the grade she gave to the student ready for the meeting. Id. On or about
April 30, 2009, Principal Garcia notified Ortega that the meeting was scheduled for
May 4, 2009, and reminded Ortega that she should have all required documentation
ready. Id. ¶ 44. At the May 4, 2009 meeting, Ortega failed to provide the supporting
documents to justify the student’s grades. Id. Principal Garcia then gave Ortega
additional time, until May 8, to submit the information. Id. ¶ 45. On May 8, 2009,
Ortega failed to provide supporting documents for the grades she gave to the
student. Id. Principal Garcia gave Ortega a cautionary notice for failing to follow a
directive. Id. 11
Another teacher, Diane Atkinson, was present when Principal Garcia issued
Ortega the cautionary notice. Pl. Addt’l. 56.1 ¶ 7. According to Atkinson, Ortega told
Principal Garcia that she needed more time because of her left arm paralysis and he
gave her the cautionary notice. 12 Id.
Pursuant to the Board’s Employee Discipline and Due Process Policy, a
cautionary notice is a non-disciplinary written statement. Def. 56.1 ¶ 45.
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Defendant argues that Atkinson was not present when Garcia gave Ortega the
assignment and lacks personal knowledge of Garcia’s reason for issuing the notice.
R. 105 at 3. However, Atkinson testified that she was present when Ortega told
Garcia she could not finish the assignment because of her left arm paralysis, Garcia
left, and then Garcia came back up with a cautionary notice. Pl. Addt’l. 56.1 ¶ 7.
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Restructuring for 2009-2010 School Year
In October 2008, Hedges adopted the Board’s Middle School Specialization
Policy for sixth through eighth grade teachers. R. 92, Ex. S. The policy provided, in
relevant part:
PURPOSE:
To require 1) that Chicago Public Schools (“CPS”) students in grades 6,
7, and 8 receive instruction in Language Arts, Mathematics, Science
and Social Studies from teachers recognized by the Illinois State Board
of Education as Middle Grade Content Area Specialists in those
content areas; and 2) that a sufficient number of teaching positions be
programmed for Middle Grades Content Area Specialist teachers.
POLICY TEXT:
I.
Definitions: For purposes of this policy, the following
definitions shall apply:
A.
“Middle Grade Content Area Specialist” means a teacher
who either: 1) possesses a middle grades content area
endorsement from the Illinois State Board of Education in
Language Arts, Mathematics, Science, and/or Social
Science; or 2) through the school year 2010‐2011 only, has
been authorized by the Illinois State Board of Education
to teach in those middle grade content areas
pending
completion of required course work and is making annual
progress towards completing endorsement requirements.
.
.
II.
Required Staffing and Assignment of Content Area
Specialists to Provide Instruction in Content Areas.
.
Effective at the start of the 2009‐2010 school year, principals and unit
administrators at schools and units serving students in the Middle
Grades shall ensure that the Middle Grades students receive
Viewing the facts in a light most favorable to Ortega, Atkinson’s testimony is
sufficient to support that sequence of events.
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instruction in Language Arts, Mathematics, Science and/or Social
Studies from a Middle Grade Content Area Specialist in the
appropriate content area.
Pl. Addt’l. 56.1 ¶ 24. Tinesha Woods, the project manager in the Board’s Office of
Instructional Design and Assessment from August 2008-December 2009, R. 104 Ex.
1 (Woods Decl.), was assigned to develop a rollout plan for the Board’s middle school
specialization policy. Id. ¶ 4. According to Woods, teachers who lacked the “content
area endorsement” could submit a “letter of intent” to the Office of Instructional
Design and Assessment signed by the teacher’s principal or the principal’s proxy.
Id. Principals had discretion as to whether or not to sign it. Id. Otherwise, teachers
needed to have their middle grade endorsements (meaning that they could teach
those subjects) before the 2009-10 school year. R. 92, Ex. S. Ortega received her
language arts endorsement in January 2009. R. 92, Ex. Y.
Before the 2009-2010 school year, Principal Garcia made two staffing
decisions that impacted Ortega. In early February 2009, Principal Garcia learned
that assessment scores for the students in the bilingual program had declined. Def.
56.1 ¶ 13. In response, he decided that approximately twelve teaching positions
would require a bilingual endorsement for the 2009-10 school year. Id. One of those
positions was Ortega’s. Id. At the same time, Principal Garcia also decided it was
the most efficient use of his staff to structure the sixth grade program for the 200910 school year as he had the seventh and eighth grade programs. Id. ¶ 14. That
change required three remaining sixth grade teachers (besides Ortega) to teach
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language arts and one other subject—either mathematics, science or social
science—just like the seventh and eighth grade teachers. Id. ¶ 15.
Principal Garcia needed the approval of the Board’s Work Force Planning
Unit’s (“WFPU”) to make the proposed changes. Id. ¶ 17. Sometime on or before
May 30, 2009, he submitted his redefinition recommendations to the WFPU, as
reflected in a document titled, “HR Activity Profile.” R. 92, Ex. K. Principal Garcia
contends there were seven teaching positions he proposed to require a bilingual
endorsement, including Ortega’s. Def. 56.1 ¶ 16; R. 92, Ex. K. In order to determine
which teachers at Hedges would be impacted by Principal Garcia’s proposal, WFPU
conducted an analysis of the teaching staff at Hedges by reviewing the teachers’
respective seniority, endorsements, certifications, and efficiency ratings. Def. 56.1 ¶
17. The Board’s WFPU reviewed Principal Garcia’s staffing recommendations to
determine whether any of the teachers without a bilingual endorsement whose
positions had been redefined could take the position of (or “bump”) a less senior
teacher whose position did not require a bilingual endorsement. Id. ¶ 18. Based on
the endorsements in Ortega’s Illinois State Board of Education (“ISBE”) teaching
certificate, she was not qualified to take any other less senior Hedges’ teacher
position. Id. ¶ 18.
In March 2009, Ortega submitted a letter of intent to Principal Garcia that
she was seeking an endorsement for “reading teacher/specialist and social
science/general geography.” R. 92, Ex. F. Principal Garcia did not sign the letter. Pl.
Addt’l. 56.1 ¶ 19; R. 92, Ex. B at Bd. 1397-98. He contends that he denied her
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request because he had “made it clear to [his] staff that the expectation by the end
of the school year June 2009 [was] that all teachers must be endorsed in the area
they’re going to be teaching.” Id. at Bd. 1399. Principal Garcia also declined to sign
letters of intent submitted by teachers Linda Smith and Ravitha Madabushi. Id.
In May 2009, Gloria Trujillo-Reyes, a WFPU coordinator, determined that of
the seven teacher positions that Principal Garcia defined to require a bilingual
endorsement, only two teachers assigned to those redefined positions, one of whom
was Ortega, would be displaced. Def. 56.1 ¶ 19; R. 92, Ex. C at 58:2-19; R. 92, Ex.
FF. The Board could not staff Ortega in any pre-K through fifth grade teacher
positions at Hedges because her ISBE teaching certificate only permitted Ortega to
teach students in grades six to eight. Def. 56.1 ¶ 19.
Principal Garcia contends that in the spring of 2009, he realized he would not
be able to staff certain positions he had designated to require bilingual endorsement
or dual endorsements due to the lack of qualified applicants who held math and
science endorsements. R. 104, Ex. 3 ¶¶ 3-4; Pl. Addt’l. 56.1 ¶¶ 27, 28. As a result, he
permitted the school’s literacy coordinator to co-teach with any teacher who had
endorsements in math and science but did not have a language arts endorsement.
The literacy coordinator provided language arts support that made up for the
absence of the math or science teacher’s language arts endorsement. R. 104, Ex. 3
¶¶ 3-4. Principal Garcia attested that he could not offer reciprocal math and science
support for teachers of other middle grade subjects because he did not have similar
support personnel for those subjects. Id.
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Subsequently, in June 2009, Ortega (along with fellow tenured teacher Diane
Atkinson) was transferred to the reassigned teachers pool because she did not have
the ISBE bilingual certificate to stay in her position or other ISBE certifications
necessary to bump less senior teachers at Hedges. Def. 56.1 ¶ 47; Pl. Addt’l. 56.1 ¶
28. According to the Reassigned Teachers Policy, and pursuant to the Collective
Bargaining Agreement between the Chicago Teachers Union and the Board in effect
in 2009, a tenured teacher who had been displaced from her position continued to
receive pay and benefits as a reassigned teacher for a ten-school month period. Def.
56.1 ¶ 8. If the teacher was unable to secure a permanent appointment to a teaching
position during that ten-month period, the teacher would be laid off and given an
honorable termination from service. Pl. Addt’l. 56.1 ¶ 37; R. 92, Ex. HH.
Consistent with the policy, Ortega’s benefits, salary and tenure status
remained the same while she was a reassigned teacher. Def. 56.1 ¶ 8. Ortega was
unable to secure a permanent appointment to a teaching position during her ten‐
month period in the reassigned teachers pool and thus, was laid off and given an
honorable termination from service, effective June 19, 2010. Pl. Addt’l. 56.1 ¶ 37. In
August 2010, Ortega received her social science middle school endorsement. Pl.
Addt’l. 56.1 ¶ 30. Atkinson, like Ortega, filed a grievance in June of 2009, though
hers was successful. R. 92, Ex. D at 34:22-35:23; R. 104, Ex. 3 ¶ 5. Atkinson
returned to her position at Hedges to teach math and language arts. Pl. Addt’l. 56.1
¶ 27. Atkinson was able to show that she had a right to return to her position after
Principal Garcia could not find a bilingual candidate and had to return the position
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back to being monolingual. Id. ¶¶ 27-28; R. 92, Ex. J at 1546-47; R. 92, Ex. B at Bd.
1396, 1445-46.
Another teacher, Justina Suh, taught eighth grade math at Hedges from
2008-09 and eighth grade math and language arts in 2009-10. While it is unclear
exactly when Suh obtained her middle school endorsement in math, she did not do
so until July 1, 2010, at the earliest. R. 92, Ex. GG; R. 95 at 13.
Effective September 2010, another teacher, Patricia Nagy, was assigned to
teach seventh grade social studies and language arts. Nagy received a middle school
language arts endorsement in January 2010 and a social science endorsement in
January 2012. R. 92, Ex. DD. Nagy also submitted a letter of intent for a librarian
position to Principal Garcia in 2010 for the 2010-11 school year, which he signed,
but ultimately she was not staffed to a librarian position. R. 105 at 12 n. 7.
III.
Procedural History
On July 31, 2008, Ortega filed a grievance regarding claims of receiving
excessive paper work, which did not allege disability discrimination. Def. 56.1 ¶ 54.
The Board denied this grievance. Id. On May 9, 2009, Ortega first made an ADA
complaint to the Board. Pl. Addt’l. 56.1 ¶ 38. Ortega sent Principal Garcia an e‐mail
stating, in part, “I am writing to inform you that you have compelled me to file a
complaint under the Americans with Disabilities Act due to the harassment and
discrimination that I have been subjected to. You know very well that I have a left
arm paralysis.” Id. On May 11, 2009, Joan Hill‐McClain, Manager of the Board’s
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Equal Opportunity Compliance Office (“EOCO”) office acknowledged that Ortega
wished to file an ADA complaint. Id.
On July 17, 2009, Ortega filed a charge of discrimination with the Equal
Employment Opportunity Commission (“EEOC”). Def. 56.1 ¶ 51. On July 31, 2009,
Ortega filed a grievance with the Board’s Office of Employee Engagement alleging
that she was improperly displaced from her position. Id. ¶ 52. That office and an
independent Arbitrator found that Ortega was properly displaced from her position
at Hedges. 13 Id. ¶ 53.
Ortega filed this lawsuit on November 28, 2011, against the Board and
Garcia. R. 1. She amended her complaint on November 27, 2012, claiming: (1) a
violation of the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. § 12101,
et seq. (“Count IV”); (2) a First Amendment retaliation claim in violation of 42
U.S.C. § 1983 (“Count V”); (3) a violation of federal due process rights (“Count VI”);
and (4) a violation of the Illinois Whistleblower Act, 740 ILCS 174/1, et seq. (“Count
VII”), a state law claim brought under the supplemental jurisdiction provisions of
28 U.S.C. § 1367. 14 R. 37. On March 22, 2013, the Court dismissed Counts V, VI,
and VII with prejudice against both Defendants, leaving her ADA claims for
discrimination. R. 52.
The Arbitration Opinion and Award attached as Defendant’s Exhibit N does not
contain the date of the decision. R 76, Ex. N.
13
Ortega’s amended complaint contains four counts, numbered Counts IV, V, VI,
and VII. (R. 37.) It does not contain a Count I, II, or III. To avoid confusion, the
Court refers to the counts as the amended complaint and parties refer to them.
14
18
Ortega alleges Defendant failed to accommodate her under the ADA when
she: (1) requested assistance moving supplies in November 2007; (2) requested that
Principal Garcia stop “bombarding” her with additional paperwork in January 2008;
and (3) requested additional time to complete an at-risk student report in March
2009. Def. 56.1 ¶ 49. Ortega also alleges that Defendant subjected her to the
following discriminatory actions in violation of the ADA: (1) no assistance moving
books and supplies from November 2007 to January 2008; (2) extensive and last
minute paperwork requests during the 2007-08 school year; (3) a heavy work load
during the 2008-09 school year; (4) insufficient time to complete an assignment; (5)
a May 2009 cautionary notice; and (6) her June 2009 displacement from Hedges. R.
76 ¶ 22. Finally, Ortega asserts that she was retaliated against for making
accommodation requests and filing an ADA complaint. R. 37.
Legal Standard
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,
322-23 (1986). The Court considers the entire evidentiary record and must view all
of the evidence and draw all reasonable inferences from that evidence in the light
most favorable to the nonmovant. Ball v. Kotter, 723 F.3d 813, 821 (7th Cir. 2013).
To defeat summary judgment, a nonmovant must produce more than “a mere
scintilla of evidence” and come forward with “specific facts showing that there is a
genuine issue for trial.” Harris N.A. v. Hershey, 711 F.3d 794, 798 (7th Cir. 2013).
19
Ultimately, summary judgment is warranted only if a reasonable jury could not
return a verdict for the nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986).
Analysis
I.
ADA Discrimination
A.
Valid Comparators
As a threshold matter, Defendant disputes which employees may be
considered Ortega’s “comparators” for purposes of evaluating her ADA claim. “The
purpose of the ‘similarly situated’ comparator element is to ensure that all other
variables are discounted so that an inference of unlawful intent would be
reasonable.” Silverman v. Bd. of Educ., 637 F.3d 729, 742 (7th Cir. 2011) (reviewing
Title VII discrimination claim) (citing Henry v. Jones, 507 F.3d 558, 564 (7th Cir.
2007)). “[T]he comparators must be similar enough that any differences in their
treatment cannot be attributed to other variables.” Id.
Defendant argues without legal citation that the Court should disregard all
comparators whom Ortega failed to identify in discovery. R. 105 at 6 n.3. Defendant
asserts that in response to the summary judgment motion, Ortega names, for the
first time, Ignacio Sanchez and Eric Siegel and they should not be considered as
comparators. Defendant also asserts that Ortega named only Alejandro Perez,
Justina Suh, and Jessica Guzman when asked in interrogatories and her deposition
to identify alleged comparators. Ortega did not explain that they were allegedly
treated better concerning endorsements, as opposed to being treated better with
20
respect to processing fewer grades. Id. While Siegel and Sanchez do not appear in
Ortega’s interrogatory responses, R. 105-1 at 11, their names have been previously
raised in documents submitted in the briefing on summary judgment, including the
arbitration hearing transcript. See, e.g., R. 92, Ex. B at Bd. 1439-41. More
importantly, their inclusion does not alter the Court’s outcome. Additionally, with
respect to Siegel, Sanchez, and the other comparators whom Defendant claims were
not identified for the same comparator basis prior to summary judgment, Defendant
does not articulate how it has been prejudiced by the inclusion of comparators for
additional bases. Ortega included in her complaint allegations about being more
qualified for the positions that opened up at Hedges during the 2009-10 school year.
In its motion for summary judgment, Defendant addresses Ortega’s argument that
the endorsement qualifications were used as the proffered basis for discrimination
against her. R. 37. For those reasons, the comparators will be included in the
Court’s analysis.
B.
Time-Barred Actions
Defendant argues that the alleged discriminatory actions Ortega identifies
that occurred during the 2007-08 school year are time-barred. Specifically,
Defendant points to Ortega’s allegations that during the 2007-08 school year: (1)
Principal Garcia made her process extensive and last minute paperwork while she
was the Lead Literacy Coordinator; and (2) Principal Garcia did not provide her
with assistance to move books and supplies. R. 75 at 5; Def. 56.1 ¶49.
21
In Illinois, an employee may sue under the ADA only if a charge of
discrimination is filed with the EEOC within 300 days of the alleged unlawful
employment practice. See Teague v. Nw. Mem’l Hosp., 492 Fed. App’x. 680, 684 (7th
Cir. 2012) (citing 42 U.S.C. §§ 12117(a), 2000e–5(e)(1)) (“A plaintiff in Illinois, a
‘deferral state’ because it has a state agency with enforcement powers parallel to
those of the EEOC, must file a charge of discrimination with the EEOC within 300
days of some offending conduct.”). Ortega filed her EEOC charge in July of 2009.
Def. 56.1 ¶ 51, more than 300 days after Garcia allegedly imposed onerous
paperwork and failed to help her move books and supplies.
The Court finds the conduct more than 300 days prior to Ortega’s EEOC
complaint time-barred. To the extent Ortega attempts to invoke the “continuing
violation” doctrine to show her claims from the 2007-2008 school year are
actionable, see R. 95 at 19, her argument fails. The continuing violation doctrine
permits a plaintiff to delay filing an EEOC charge until a series of acts by an
employer “blossoms into a wrongful injury on which a suit can be based.” Mull v.
Abbott Labs., 563 F. Supp. 2d 925, 929-30 (N.D. Ill. 2008) (citing Lewis v. City of
Chicago, 528 F.3d 488, 493 (7th Cir. 2008)). However, “the Seventh Circuit has
made it clear that the continuing violation doctrine does not apply to ‘discrete’
discriminatory acts, and will only be applicable to ‘acts contributing to’ claims, such
as a hostile work environment claim.” Slingerland v. Bibb, No. 05 C 7253, 2006 WL
3775953, at *3 (N.D. Ill. Dec. 18, 2006) (citing Lucas v. Chicago Transit Authority,
367 F.3d 714, 723-24 (7th Cir. 2004) (stating that “[w]ith respect to the first
22
category-discrete acts-each act starts a new clock for filing charges, and the clock
starts on the date that the act occurred” . . . that “[a]ny discrete discriminatory acts
that fall outside the statute of limitations are time-barred even though they may
relate to other discrete acts that fall within the statute of limitations”). Discrete acts
are defined as acts that “‘are easy to identify’ because ‘each incident of
discrimination and each retaliatory adverse employment decision constitutes a
separate actionable unlawful employment practice.”’ Slingerland, 2006 WL
3775953, at *3 (quoting Lucas, 367 F.3d at 724 (quoting in part Nat’l R.R. Passenger
Corp. v. Morgan, 536 U.S. 101, 114 (2002))).
A hostile work environment claim, by contrast, “involves repeated conduct
that ‘may not be actionable on its own, . . . [and][s]uch claims are based on the
cumulative effect of individual acts.”’ Id. Ortega has not made a hostile work
environment claim. Nor has she argued that any of the 2007-2008 incidents are
actionable. Insofar as these discrete actions occurred more than 300 days before her
EEOC charge, they are therefore time-barred. Additionally, Ortega cites no
authority discussing the continuing-violation doctrine in the context of a failure to
accommodate claim. Courts that have analyzed the application of this doctrine in
ADA lawsuits have concluded that “a refusal to accommodate is a discrete act—not
an ongoing omission—and therefore the continuing violation doctrine does not
apply.” See Teague, 492 Fed. App’x at 684 (citing Tobin v. Liberty Mut. Ins. Co., 553
F.3d 121, 130–31 (1st Cir. 2009); Mayers v. Laborers’ Health & Safety Fund of N.
23
Am., 478 F.3d 364, 368 (D.C. Cir. 2007)). Thus, the acts Ortega identifies during the
2007-08 school year more than 300 days prior to her EEOC charge are time-barred.
C.
Discrimination Claims
The ADA makes it unlawful to “discriminate against a qualified individual on
the basis of disability in regard to job application procedures, the hiring,
advancement, or discharge of employees, employee compensation, job training, and
other terms, conditions, and privileges of employment.” 42 U.S.C. § 12112(a).
Because “the motivation and implementation behind the ADA was similar to that of
the Civil Rights Act of 1964, courts often look to the Civil Rights Act for ADA
guidance.” Dickerson v. Bd. of Trustees of Comm. College Dist. No. 522, 657 F.3d
595, 600 (7th Cir. 2011) (collecting cases).
There are two types of discrimination claims under the ADA: disparate
treatment and failure to accommodate. Hoffman v. Caterpillar, Inc., 256 F.3d 568,
572 (7th Cir. 2001). Ortega has alleged both types of discrimination.
i.
Disparate Treatment
“Disparate treatment claims arise from language in the ADA prohibiting
covered entities from limiting, segregating, or classifying a job applicant or
employee in a way that adversely affects the opportunities or status of such
applicant or employee.” Hoffman, 256 F.3d at 572 (citing 42 U.S.C. § 12112(b)(1)). A
disabled plaintiff can prove disability discrimination using either the direct or
indirect method of proof. Robin v. Espo Eng’g Corp., 200 F.3d 1081, 1088 (7th Cir.
2000). Ortega argues that Defendant is not entitled to summary judgment because
24
she has established a claim of disability discrimination under both the direct and
indirect methods.
a.
Direct Method of Proof
To make out a prima facie case of disability discrimination for disparate
treatment under the direct method of proof, Ortega must show that: “(1) she has a
disability within the meaning of the ADA; (2) she is qualified to perform the
essential functions of her job, with or without reasonable accommodation; and (3)
she was subject to an adverse employment action due to her disability.” Herrera v.
Illinois Bell Tel. Co., No. 11 C 5762, 2013 WL 654920, at *8 (N.D. Ill. Feb. 21, 2013)
aff’d, 530 F. App’x 588 (7th Cir. 2013) (citations omitted). Under the direct method,
Ortega may present either direct or circumstantial evidence to meet her burden.
Buie v. Quad/Graphics, Inc., 366 F.3d 496, 503 (7th Cir. 2004). Direct evidence
requires an admission by the decision maker that his or her actions were based
upon the prohibited animus. Id. at 503. Where direct evidence is not present,
circumstantial evidence that a plaintiff may produce to survive summary judgment
includes: (1) ambiguous statements or behavior towards other employees in the
protected group; (2) evidence, statistical or otherwise, that similarly situated
employees outside of the protected group systematically receive better treatment;
and (3) evidence that the employer offered a pretextual reason for an adverse
employment action. See Diaz v. Kraft Foods Global, Inc., 653 F.3d 582, 586–87 (7th
Cir. 2011). “Whatever circumstantial evidence a plaintiff presents “must point
directly to a discriminatory reason for the employer’s action.” Burnell v. Gates
25
Rubber Co., 647 F.3d 704, 708 (7th Cir. 2011) (citing Adams v. Wal–Mart Stores,
Inc., 324 F.3d 935, 939 (7th Cir. 2003)).
Ortega relies on circumstantial evidence of a causal link. She argues that a
discriminatory motive for the adverse employment actions against her is inferable
from the following: (1) Ortega’s request for more time to complete her list of student
interventions because of her left arm paralysis and Principal Garcia’s response to
“just get it done,” R. 95 at 4; (2) other requests for help (e.g., getting materials to her
classroom) and Principal Garcia’s response to “get the help however she could,” id.;
and (3) Ortega’s May 2009 cautionary notice. Id. at 4-5.
The Court finds Ortega’s circumstantial evidence insufficient to demonstrate
discriminatory intent for her reassignment. The circumstantial evidence she cites
does not “point directly to a discriminatory reason for the employer’s action.”
Adams, 324 F.3d at 939. With regard to her requests for more time to complete the
student interventions lists in January or February 2009, Ortega and other teachers
were all given until the end of the week to complete them. Def. 56.1 ¶ 41. Ortega
has not shown how Principal Garcia’s instructions to “just get it done,” and his
failure to give her more time than the extension she and everyone else received, are
related to the proffered adverse action against her—being placed in the reassigned
teachers’ pool in June 2009. See Cianci v. Pettibone Corp., 152 F.3d 723, 727 (noting
that “before seemingly stray workplace remarks will qualify as . . . evidence of
discrimination [under the direct method of proof], the plaintiff must show that the
remarks were related to the employment decision in question”) (citation omitted);
26
see also Cerutti v. BASF Corp., 349 F.3d 1055, 1066 (7th Cir. 2003). The same goes
for Perez’s testimony that Principal Garcia told Ortega to “get help however she
could” in getting materials to her classroom. Pl. Addt’l. 56.1 ¶ 17. The only date
provided for that conduct is Ortega’s November 2007 request to Principal Garcia for
assistance moving books and school supplies. Def. 56.1 ¶ 23. Ortega fails to show
that the remarks or treatment were related to her reassignment more than a year
later. Additionally, Ortega received the requested assistance two months later when
Principal Garcia instructed an assistant principal to create a sign-in sheet for
student helpers to help all teachers with small projects. Id. ¶ 25.
With regard to the May 2009 cautionary notice, Ortega points to Atkinson’s
testimony that Ortega received the notice after she told Principal Garcia that she
needed more time to complete the assignment because of her paralysis. Pl. Addt’l.
56.1 ¶ 7. Assuming that Ortega’s June 2009 reassignment was an adverse action
(which Defendant disputes), although it was close in time to her receipt of the May
2009 cautionary notice, timing alone will not defeat summary judgment. Magnus v.
St. Mark United Methodist Church, No. 10 C 380, 2011 WL 5515521, at *7 (N.D. Ill.
Nov. 10, 2011) (“suspicious timing alone is almost never enough” to defeat summary
judgment, and those cases “where a weak inference regarding suspicious timing
alone is enough to create a triable issue” are “rare”) (quoting Reynolds v.
Champaign Urbana Mass Transit Dist., 378 Fed. App’x. 579, 582 (7th Cir. 2010))
(internal quotation marks omitted)). Further, Ortega does not dispute the sequence
of events preceding the cautionary notice. On April 20, 2009, Principal Garcia first
27
forwarded to Ortega the letter from a student’s parent about the student’s language
arts grade and notified Ortega that a meeting with the parent would be scheduled.
Def. 56.1 ¶ 43. Principal Garcia also told Ortega to have the necessary documents to
support the grade that she issued to the student ready for the meeting. Id. On or
about April 30, 2009, Principal Garcia notified Ortega that the meeting was
scheduled for May 4, 2009, and reminded Ortega that she should have all required
documentation ready. Id. ¶ 44. At the May 4, 2009, meeting, Ortega failed to
provide the supporting documents to justify the student’s grades. Id. Principal
Garcia gave Ortega additional time, until May 8, 2009, when she again failed to
produce the supporting documents. Id. ¶ 45. Thus, while Atkinson heard Ortega tell
Principal Garcia on May 8 that she could not complete the analysis because of her
left arm paralysis, Ortega does not dispute the factual basis for the cautionary
notice. R. 76-11, Ex. 5. In this context, Ortega has failed to show a causal link
between the cautionary notice and her reassignment.
b.
Indirect Method of Proof
Under the indirect method of proof, a plaintiff must first establish a prima
facie case of discrimination by showing that (1) she is disabled under the ADA; (2)
she was meeting her employer’s legitimate employment expectations; (3) she
suffered an adverse employment action; and (4) similarly situated employees
without a disability were treated more favorably. Dickerson, 657 F.3d at 601-02
(citing Lloyd v. Swifty Transp., Inc., 552 F.3d 594, 601 (7th Cir. 2009)). “Once a
plaintiff has established a prima facie case, the defendant must identify a
28
legitimate, non-discriminatory reason for its employment decision.” Id. (citing
Rooney v. Koch Air, LLC, 410 F.3d 376, 381 (7th Cir. 2005)). “If the defendant
satisfies this requirement, the plaintiff must then prove by a preponderance of the
evidence that the defendant’s reasons are pretextual.” Dickerson, 657 F.3d at 601-02
(citing Lloyd, 552 F.3d at 601).
i.
Adverse Job Action
Ortega identifies the following as adverse job actions, 15 though she fails to
provide specific dates for any of them: (1) failing to give assistance in moving books
and supplies; (2) extensive and last minute paperwork; (3) a heavy workload; (4)
insufficient time to complete assignments; (5) the issuance of a cautionary notice
upon a request for accommodation, and (6) unjustified displacement from
permanent employment, all of which she describes as “examples of an unsafe and
negative working environment for a Plaintiff suffering from . . . arm paralysis.” R.
95 at 7. Defendant argues that none of the conduct qualifies as an adverse action
because it did not quantitatively or qualitatively change the terms or conditions of
Ortega’s employment. Ortega argues that each of these actions falls within the
category of actions where “the conditions in which [Plaintiff] works are changed in a
way that subjects [her] to a humiliating, degrading, unsafe, unhealthful, or
otherwise significantly negative alteration in his workplace environment.”
Herrnreiter v. Chicago Hous. Auth., 315 F.3d 742, 744 (7th Cir. 2002). However,
As discussed above, to the extent these adverse job actions took place more than
300 days prior to her July 2009 EEOC claim, they are not actionable. That includes
Ortega’s November 2007 request for help moving supplies and Garcia’s January
2008 request regarding completing additional paperwork.
15
29
with the exception of her June 2009 reassignment, Ortega fails to develop an
argument (or provide examples) that any similarly situated colleagues were treated
differently with respect to her proffered adverse actions. R. 95 at 7-8. Thus, the
court will address only the June 2009 reassignment.
Adverse employment actions “generally fall into three categories: (1)
termination or reduction in compensation, fringe benefits, or other financial terms
of employment; (2) transfers or changes in job duties that cause an employee’s skills
to atrophy and reduce future career prospects; and (3) unbearable changes in job
conditions, such as a hostile work environment or conditions amounting to
constructive discharge.” Alexander v. Casino Queen, Inc., 739 F.3d 972, 980 (7th Cir.
2014) (quoting Barton v. Zimmer, Inc., 662 F.3d 448, 453–54 (7th Cir. 2011)
(internal quotation marks omitted)). To be actionable, an employment action “must
be a significant change in employment status . . . or a decision causing a significant
change in benefits.” Lewis v. City of Chi., 496 F.3d 645, 653 (7th Cir. 2007) (citation
omitted). Adverse employment actions are often “economic injuries,” Markel v. Bd.
of Regents of Univ. of Wisc. Sys., 276 F.3d 906, 911 (7th Cir. 2002), but also “extend
beyond readily quantifiable losses.” O’Neal v. City of Chi., 392 F.3d 909, 911 (7th
Cir. 2004) (citations omitted)).
While the Seventh Circuit takes a broad view with regard to what rises to the
level of a materially adverse employment action, Maclin v. SBC Ameritech, 520 F.3d
781, 787 (7th Cir. 2008), a mere inconvenience or a minor change in working
conditions does not qualify. Nichols v. S. Ill. Univ.–Edwardsville, 510 F.3d 772, 780
30
(7th Cir. 2007). “At the very least, [plaintiff] must show some quantitative or
qualitative change in the terms or conditions of his employment that is more than a
mere subjective preference.” Johnson v. Cambridge Indus., Inc., 325 F.3d 892, 901
(7th Cir. 2003).
The Court concludes that a reasonable jury could find that the reassignment
was adverse. Ortega has presented evidence that, by its terms, the reassignment
policy resulted in her being laid off as she was unable to secure another job in 10
months, which she did not. See, e.g., Lewis v. New York City Transit Auth., 12 F.
Supp. 3d 418, 430 (E.D.N.Y. 2014) (“a reasonable jury could find that the transfer to
the bus depot was an adverse employment action. Likewise, the rescission of
[plaintiff’s] reclassification, which led to her termination could constitute an adverse
action. Thus, there is sufficient evidence to establish plaintiff’s prima facie case for
summary judgment purposes.”); Cf. Blazquez v. Bd. of Educ. of the City of Chicago,
No. 05 C 4389, 2007 WL 2410369, at *13 (N.D. Il. Aug. 20, 2007) (finding plaintiff
who was displaced from her school, not invited back for the school year, but
remained a Board employee with the right to be considered for other teaching
positions and who almost immediately found a placement at another school, had not
shown an adverse action).
ii.
Remaining Elements
Ortega contends that other teachers who were similarly situated to her were
treated more favorably with respect to the alleged adverse action. In order for an
individual to be similarly situated to the plaintiff, the plaintiff must show that the
31
individual is “directly comparable to her in all material respects.” Burks v.
Wisconsin Dep’t. of Transp., 464 F.3d 744, 751 (7th Cir. 2006) (citing Patterson v.
Avery Dennison Corp., 281 F.3d 676, 680 (7th Cir. 2002)). “Factors relevant to this
inquiry include whether the employees reported to the same supervisor, whether
they were subject to the same standards and whether they had comparable
education, experience and qualifications.” Burks, 464 F.3d at 751 (citations
omitted). This also requires the plaintiff to show that there were no “differentiating
or mitigating circumstances as would distinguish . . . the employer’s treatment of
them.” Ineichen v. Ameritech, 410 F.3d 956, 960-61 (7th Cir. 2005) (quoting Radue v.
Kimberly-Clark Corp., 219 F.3d 612, 617-18 (7th Cir. 2000)).
Ortega claims that teachers Ignacio Sanchez, Diane Atkinson, Eric Siegel,
and Justina Suh were all treated better than she was because their bilingual
endorsement requirements were waived. R. 95 at 9. Ortega also argues that
Alejandro Perez, Brian Cerda, Patricia Nagy, Jessica Guzman, Justina Suh, and
Diane Atkinson were treated better with respect to the middle grades specialization
policy, which required teachers to obtain a content area endorsement. Id. at 13.
Ortega has failed to show that she was similarly situated to the majority of
the teachers at the time of her reassignment. In some cases, the other teachers that
either had bilingual endorsements (or their equivalent) or were endorsed in subject
matters other than language arts during the relevant time period. While Ortega
received her language arts endorsement in January 2009, she did not receive her
social science endorsement until August 2010. R. 92, Ex. Y. In June 2009, however,
32
Sanchez had endorsements in both language arts and math, the latter of which
Ortega did not. R. 92, Ex. Z. Similarly, Siegel, who taught language arts and social
studies, was endorsed in both of those subjects in July 2009. Id., Ex. W. Brian
Cerda, who taught sixth grade language arts and social studies during the 2009-10
school year, had endorsements in both language arts and social science, initially
issued in August of 2006 and renewed in July 2010. Pl. Addt’l. 56.1 ¶ 33; R. 92, Ex.
KK. As noted, Principal Garcia decided that it was most efficient for the 2009-10
school year to staff his sixth grade program as he had the seventh and eighth grade
programs—requiring three teachers to teach two subject matters. See, e.g.,
Barbarotta v. Chicago Bd. of Educ., No. 05 C 3241, 2008 WL 4671745, at *6 (N.D.
Ill. Oct. 21, 2008) (finding teacher not similarly situated to plaintiff where the
alleged comparator had the same number of ISBE certificates, but possessed
certificates of different kinds that qualified him for the principal’s requirement that
“the Spanish language teachers should have an additional endorsement in another
core subject.”).
Ortega was also not similarly situated to Perez and Guzman. They had
bilingual endorsements or were otherwise properly certified to teach classes
requiring a bilingual certificate, which Ortega was not. R. 104, Ex. 2 ¶ 4,
Attachment A; R. 92, Ex. T. As noted, in February 2009, Principal Garcia had
determined based on student test scores from the bilingual program and the
increased number of students in the program that his school needed more teachers
with a bilingual endorsement. Def. 56.1 ¶ 13. Guzman taught eighth grade social
33
science in 2008-09 and was assigned to teach eighth grade social science and
language arts for the 2009-10 year. Pl. Addt’l. 56.1 ¶ 35. Although Guzman did not
have her endorsement for social science and obtained her bilingual endorsement in
January 2011, she was issued a transitional bilingual teaching certificate in May
2004 which expired on July 1, 2011. R. 104, Ex. 2 ¶ 4, Attachment A; R. 92, Ex. T.
According to the Employee Relations Manager of the Board’s Office of Human
Capital, Alicia Reynaud, that transitional bilingual certificate enabled Guzman to
teach classes requiring a bilingual certificate and was equivalent to a bilingual
endorsement. R. 104, Ex. 2 ¶ 4. In the 2008-09 school year, Perez was teaching
language arts and math, which he was also assigned to teach in 2009-10. Unlike
Ortega, Perez had a math endorsement and a bilingual endorsement. R. 92, Ex. T.
Accordingly, even if Guzman and Perez taught only the same subject as Ortega—
language arts—they each also had a bilingual endorsement qualifying them in a
way that Ortega was not. Barbarotta, 2008 WL 4671745, at *6. Ortega asserts that
she obtained her junior high school foreign language-Spanish endorsement in 2002
and an ESL endorsement in 2010, Pl. Addt’l. 56.1 ¶ 30, but provides no support for
the assertion that these were equivalent to a bilingual endorsement.
Atkinson, like Ortega, did not have a bilingual endorsement. After Atkinson’s
grievance was resolved in November 2010, she taught math and language arts. Pl.
Addt’l. 56.1 ¶ 27. She was not treated better than Ortega, however, with respect to
the June 2009 reassignment because she too was placed in the reassignment pool
with Ortega at that time. However, Atkinson was able to show that she had a right
34
to return to her position after Principal Garcia could not find a bilingual candidate
to fill it. Def. 56.1 ¶ 48. Even if the Court considers Atkinson’s return to Hedges
following her grievance as better treatment in the context of her displacement,
Atkinson’s junior high math endorsement meant she was not similarly situated to
Ortega. Unlike Ortega, she possessed credentials allowing her to teach math in the
middle grades. R. 104, Ex. 3; R. 92, Ex. V. Further, Principal Garcia explained that
due to a lack of qualified applicants who held endorsements in math and science, he
determined the school’s literacy coordinator would co-teach language arts with any
teacher who had endorsements in math and science. R. 104, Ex. 3 ¶ 3.
Ortega claims that she has established pretext because Defendant changed
its business justification for her reassignment. R. 95 at 1-2. Ortega asserts that
“Principal Garcia claims that he submitted a proposal to redefine a total of seven
teaching positions to require a bilingual endorsement, one of which was Plaintiff’s
6th grade teaching position,” and that, according to the principal, Ortega “simply
did not have the certificates or endorsements to ‘bump’ other less senior teachers.”
Id. She claims that this justification “must be contrasted” with Principal Garcia’s
claims made during the arbitration of Ortega’s displacement. She argues that “[a]t
arbitration, Principal Garcia and the Board of Education took the position that
Plaintiff was displaced because of the middle school specialization policy, which has
nothing to do with whether Plaintiff had a bilingual endorsement.” Id. Ortega
further asserts that “[t]his change in ‘justification’ was necessary because of the
admission by the Board during this case that Principal Garcia actually had no
35
discretion to disallow a short term authorization request, which would have
permitted Plaintiff to comply with the terms of the middle school specialization
policy.” Id. Instead, Ortega claims, Principal Garcia denied her request for a short
term authorization to use lack of a “proper endorsement” as a means to displace
her.
“The focus of a pretext inquiry is whether the employer’s stated reason was
honest, not whether it was accurate, wise or well-considered.” Stewart v. Henderson,
207 F.3d 374, 378 (7th Cir. 2000). Where a defendant offers multiple reasons for an
adverse action, a plaintiff must present evidence that they were all pretextual to
defeat a motion for summary judgment. See, e.g., Burks, 464 F.3d at 754 (reviewing
bases for termination). Accordingly, Ortega is still required to submit evidence from
which a reasonable jury could find that each of Defendant’s reasons for transferring
her to the reassigned teachers’ list was pretextual.
Given that an employer can terminate an employee for multiple, legitimate
reasons, the fact that a record contains more than one statement of why a plaintiff
was fired only helps the plaintiff if those statements “are inconsistent with one
another or the underlying facts in such a way as to suggest a lie.” Creal v.
Springhill Ford, Inc., No. 06 C 0175, 2007 WL 3120106, at *6 (N.D. Ill. Oct. 19,
2007). Ortega has not shown that the justifications of Principal Garcia and the
Board at arbitration were inconsistent with Principal Garcia’s proffered reasons
relating to the bilingual endorsement requirement. In her attempt to support this
proposition, Ortega cites her three-page long response to one of Defendant’s
36
statement of facts, ¶ 13. R. 95 at 1-2. The Court has already found that response to
be improper. In any case, the record evidence cited therein does not support
Ortega’s position. Ortega cherry picks from the explanations provided to suggest
that they must be mutually exclusive.
Contrary to Ortega’s claim that the bilingual basis was not relied upon at
arbitration, both Principal Garcia and Trujillo-Reyes testified about the bilingual
requirement in addition to endorsements during the arbitration hearing. Principal
Garcia testified at arbitration that the middle grades policy required extensive
research and programming for the 2009-10 school year. R. 92, Ex. 2 at 1393. He
stated that ten positions were affected by the middle grades specialization policy.
Id. During the same testimony, when asked what precluded Ortega from remaining
at Hedges at the end of the 2008-09 school year, Principal Garcia stated that she
“did not comply with social studies and bilingual.” Id. at 1412. Ortega fails to show
how this is inconsistent with the justification that certain positions were redefined
to require a bilingual endorsement, including her own. When questioned at
arbitration about why Ortega did not qualify for the ten positions affected by the
middle grades specialization policy, WFPU coordinator Trujillo-Reyes cited, among
the lack of other endorsements, Ortega’s lack of a bilingual endorsement for
positions filled by other teachers. See R. 92, Ex. B at Bd. 1441:20-1442:2, 1443:41444:2. That testimony belies Ortega’s claim that Defendant changed its business
justification for her displacement.
37
With respect to Ortega’s claims about the short term authorization, she notes
that Trujillo-Reyes testified during her September 2013 deposition that principals
do not have a choice on who approves the short-term authorization, which lies with
“the Department at the Board.” R. 92, Ex. C at 13:5-10 (emphasis added). However,
at the September 2010 arbitration, Trujillo-Reyes also testified that principals have
discretion to sign a letter of intent for a short term authorization request, which is
then passed onto the Board for approval. Specifically, Trujillo-Reyes testified that
the process for a short-term authorization was for a teacher to go to the ISBE to find
out their deficiencies, and if they did not have an endorsement, apply for a shortterm authorization. R. 92, Ex. B at Bd. 1429. That application required them to fill
out two forms, one of which the principal “could sign off” to move the authorization
application onto the Board. Id. at Bd. 1430. The principal was not required to sign
off, but had discretion to do so. Ex. B at Bd. 1430-1432.
This is consistent with the declaration of Tinesha Woods, the project manager
in the Board’s Office of Instructional Design and Assessment, who was assigned to
develop a rollout plan for the Board’s middle school specialization policy and who
oversaw the short term authorization process related to the policy. R. 104, Ex. 1 ¶ 4.
According to Woods, teachers who lacked a content area endorsement could submit
an application for short term authorization to the Office of Instructional Design and
Assessment. Id. In order for the application to be processed, the teacher’s principal
or the principal’s proxy needed to sign the letter of intent, which they had discretion
to do. Id.
38
Principal Garcia testified at arbitration that he informed the staff during the
2008-09 school year that he expected them to be endorsed by the end of the school
year in one or more of the core subjects. R. 92, Ex. B at Bd. 1392:1-23. He also
testified that he did not sign off for approval of short term authorizations for Linda
Smith or Ravitha Madabushi, in addition to Ortega, id. at Bd. 1399:1-1400:1,
because he had made it clear to the staff that he expected them to be endorsed in
the area they would be teaching and believed he had the discretion to sign off or not
on the authorization. R. 92, Ex. B at Bd. 1399:7-20. Ortega’s related pretext
argument—that Principal Garcia did not sign her letter of intent in order to use her
lack of a “proper endorsement” against her—therefore fails.
There are two teachers, however, whom the Court finds were similarly
situated to Ortega. Justina Suh taught eighth grade math at Hedges from 2008-09
and eighth grade math and language arts in 2009-10. Principal Garcia explained
that he had to alter his staffing to accommodate the shortage of qualified applicants
with dual endorsements by using the literacy coordinator to co-teach language arts
with math and science teachers who lacked that endorsement. Pl. Addt’l. 56.1 ¶ 27;
R. 104, Ex 3 ¶ 3. But Ortega notes (and Defendant does not dispute) that Suh did
not obtain her middle school endorsement in math until July 1, 2010. R. 92, Ex. GG.
Suh’s credentials report, however, shows only a middle grades math endorsement
issued on July 1, 2012. Id. In its reply, Defendant fails to clarify when Suh received
her math endorsement. In either case, it does not appear that Suh held the math
endorsement until after the school year in 2010, although she taught math and
39
language arts during the 2008-09 and 2009-10 school years. Based on the date of
her math endorsement, Defendant’s proffered distinction between Suh and
Ortega—that Ortega “lacked a mathematics endorsement,” R. 105 at 9—appears to
be inaccurate, or at least requires more explanation. The Court finds that
Defendant has failed to identify a legitimate, non-discriminatory reason for its
employment decision to treat Ortega differently than Suh.
Defendant also fails to effectively dispute that Patricia Nagy was similarly
situated to Ortega. Defendant has not identified a legitimate, non-discriminatory
reason why she was treated more favorably than Ortega. Effective September 2010,
Nagy was assigned to teach seventh grade social studies and language arts. Pl.
Addt’l. 56.1 ¶ 34. Ortega argues that Nagy did not receive her language arts
endorsement until January 2010, and her social science endorsement until January
2012, both after Ortega, respectively. R. 92, Ex. DD. While Defendant claims that
Nagy was not similarly situated because Nagy had a bilingual endorsement, her
attached credential report states that her bilingual endorsement was for
kindergarten through fourth grades, not middle school. Id. The transitional
bilingual teaching endorsement on that report states that it expired in July 2004.
Id. Neither party addresses that issue.
Defendant also states that Nagy, who submitted a letter of intent for a
librarian position to Principal Garcia in 2010, is not similarly situated to Ortega
“because Plaintiff offers no evidence that she either applied for a Librarian position
at Hedges or asked Principal Garcia to sign a letter of intent for a Librarian
40
position.” R. 105 at 12 n.7. However, even though Principal Garcia signed a letter of
intent for Nagy in 2010 for a librarian position, she was not staffed to a librarian
position. R. 105 at 12 n.7; R. 104, Ex. 3 ¶ 7. Defendant fails to explain the relevance
of this fact to Ortega’s endorsement status—bilingual or otherwise—at the time she
was reassigned in June 2009 or finally terminated from service in June 2010.
In sum, the Court finds that Ortega’s ADA discrimination claim for disparate
treatment survives summary judgment only with respect to comparators Justina
Suh and Patricia Nagy, for whom Defendant has failed to identify a legitimate, nondiscriminatory reason for its employment decision in allowing them and not Ortega
to teach without certain endorsements.
ii.
Failure to Accommodate under the ADA
The second type of discrimination under the ADA is for failure to
accommodate, which arises from language in the ADA requiring employers to make
“reasonable accommodations to the known physical or mental limitations of an
otherwise qualified individual.” 42 U.S.C. § 12112(b)(5)(A). The Seventh Circuit has
derived a three-part test from the statutory language for failure to accommodate.
“In order to establish a claim for failure to accommodate, a plaintiff must show that:
(1) [s]he is a qualified individual with a disability; (2) the employer was aware of
her disability; and (3) the employer failed to reasonably accommodate the
disability.” Bunn v. Khoury Enterprises, Inc., 753 F.3d 676, 682 (7th Cir. 2014)
(citing EEOC v. Sears, Roebuck & Co., 417 F.3d 789, 797 (7th Cir. 2005)). In failure
to accommodate claims, unlike disparate treatment claims, the McDonnell Douglas
41
burden-shifting approach is not necessary or appropriate. See Weigel v. Target
Stores, 122 F.3d 461, 464 (7th Cir. 1997). Instead, the plaintiff, in addition to
showing that she is a qualified individual with a disability, must show that the
employer was aware of her disability and still failed to reasonably accommodate it.
Hoffman, 256 F.3d at 572-73 (citing Foster v. Arthur Andersen, LLP, 168 F.3d 1029,
1032 (7th Cir. 1999)).
Reasonable accommodations may include: “(A) making existing facilities used
by employees readily accessible to and usable by individuals with disabilities; and
(B) job restructuring, part-time or modified work schedules, reassignment to a
vacant position, acquisition or modification of equipment or devices, appropriate
adjustment or modifications of examinations, training materials or policies, the
provision of qualified readers or interpreters, and other similar accommodations for
individuals with disabilities.” Hoffman, 256 F.3d at 573; 42 U.S.C. § 12111(9)).
In her response brief, the entirety of Ortega’s argument section regarding
Defendant’s failure to reasonably accommodate her is as follows:
Principal Garcia was required to accommodate Plaintiff’s disability,
which he did not do. Testimony was clear that Plaintiff requested
accommodation from Garcia and that these requests were ignored.
Principal Garcia wanted everything done on his own schedule,
regardless of Plaintiff’s disability.
R. 95 at 17. Ortega fails to develop her argument that defendant failed to
reasonably accommodate her disability. In her argument about disparate treatment,
she alleges that Defendant failed to accommodate her requests, as follows: (1)
November 2007 request to provide her with a reasonable accommodation to move
42
books and school supplies; (2) January 2008 request to “stop bombarding her” with
additional paperwork; and (3) March and May 2009 requests for more time to
complete an assignment. Def. 56.1 ¶ 39; R. 95 at 15-16. 16 To the extent that Ortega
relies on this conduct for failure to accommodate, her argument fails. The first two
requests are time-barred, as they occurred more than 300 days prior to Ortega’s
EEOC complaint. See Herr v. City of Chicago, 447 F. Supp. 2d 915, 918 (N.D. Ill.
2006) (300 day period applies to claims brought under the ADA as well as under
Title VII) (citation omitted).
With regard to the third request, Ortega alleges that in January or February
2009, she requested more time to complete her list of student interventions. Pl.
Addt’l. 56.1 ¶ 15. In her response, Ortega does not state how much extra time she
requested from Principal Garcia or whether that amount of time was different from
the other teachers. It is undisputed, however, that all the teachers asked for more
time, and Principal Garcia gave them until the end of the week. Def. 56.1 ¶ 41; Pl.
Addt’l. 56.1 ¶ 15. “It is the employer’s prerogative to choose a reasonable
accommodation;
an
employer
is
not
required
to
provide
the
particular
accommodation that an employee requests.” Jay v. Intermet Wagner, Inc., 233 F.3d
1014, 1017 (7th Cir. 2000); see also Schmidt v. Methodist Hosp. of Ind., 89 F.3d 342,
344 (7th Cir. 1996) (stating that “[r]easonable accommodation does not require an
employer to provide literally everything the disabled employee requests”); Hoffman,
While Ortega also asserts that Principal Garcia assigned her a larger number of
grades to process in 2008-2009 and a report longer than those similarly situated to
her, R. 95 at 16, she fails to identify any facts in support of this contention and it
will not be considered.
16
43
256 F.3d at 577. Ortega also contends that Perez heard her ask Principal Garcia for
more time to complete her intervention list due to her disability and he told her to
“just get it done.” Pl. Addt’l. 56.1 ¶ 16; R. 95 at 4. Ortega does not state when this
conversation took place—before or after the other teacher requests—or how much
additional time she asked for. 17 Moreover, she acknowledges that she and all of the
other teachers asked Principal Garcia for more time and he gave them to the end of
the week. On these facts, the Court holds that a reasonable jury could not find that
Principal Garcia’s grant of an extension until the end of the week was
unreasonable.
II.
ADA Retaliation
The ADA also prohibits employers from retaliating against employees who
assert their rights under the Act to be free from discrimination. 42 U.S.C. §
12203(a). Employers are forbidden from retaliating against employees who raise
ADA claims regardless of whether the initial claims of discrimination are meritless.
Squibb v. Mem’l Med. Ctr., 497 F.3d 775, 786 (7th Cir. 2007). “The ADA provision
that forbids an employer to retaliate against an employee for statutorily protected
activities is materially identical to the provision of Title VII that prohibits
retaliation.” Anderson v. The Foster Group, 521 F. Supp. 2d 758, 788 (N.D. Ill. 2007)
(citing Twisdale v. Snow, 325 F.3d 950, 952 (7th Cir. 2003)). Like her discrimination
claim, Ortega may prove her claim of retaliation in violation of the ADA via either
To the extent Ortega relies on her May 2009 request for more time which resulted
in the cautionary notice, R. 95 at 16, the same analysis applies and the same
conclusion results. Ortega does not dispute the sequence of facts preceding the
cautionary notice nor does she state how much additional time she requested.
17
44
the direct or indirect method of proof. Anderson, 521 F. Supp. 2d at 788 (citing
Burks, 464 F.3d at 758). Ortega has elected to use the direct method, R. 95 at 17,
which requires her to show (1) that she engaged in a statutorily protected activity;
(2) that she suffered an adverse action; and (3) a causal connection between the two.
Casna v. City of Loves Park, 574 F.3d 420, 426 (7th Cir. 2009).
Ortega alleges that she engaged in statutorily protected activity by
“request[ing] accommodation from 2007 through 2009” and, in May 2009, by placing
Defendants on notice that she was filing an ADA complaint. R. 95 at 17. She asserts
that her placement in the reassigned teacher’s pool, which ultimately resulted in
the loss of her job, was an adverse job action. Id. A plaintiff can establish a causal
link between her protected activity and her termination using either direct or
circumstantial evidence. See Dickerson, 657 F.3d at 601. “Direct evidence requires
an admission by the decision maker that his or her actions were based upon the
prohibited animus.” Id. Ortega has not cited any direct evidence supporting this
claim. The type of circumstantial evidence that Ortega may produce to survive
summary judgment includes: “(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 protected group
systematically receive better treatment; and (4) evidence that the employer offered
a pretextual reason for an adverse employment action.” Dickerson, 657 F.3d at 601;
see also Sneed v. City of Harvey, 6 F. Supp. 3d 817, 834 (N.D. Ill. 2013) (aff’d sub
45
nom. Sneed v. City of Harvey, Ill., No. 14-1125, 2015 WL 151715 (7th Cir. Jan. 13,
2015)).
A.
Adverse Action
Ortega asserts that the adverse action at issue here is her assignment to the
reassigned teachers’ pool, which took place in June 2009. The Court has already
concluded that a reasonable jury could find that Ortega’s reassignment was an
adverse action in support of a discrimination claim. Further, the standard for
establishing retaliation pursuant to Title VII is “lower than that required for a
discrimination claim; a plaintiff must only show that the employer’s action would
cause a ‘reasonable worker’ to be dissuaded from making or supporting a charge of
discrimination.” Chaib, 744 F.3d 974, 986-87 (7th Cir. 2014) (citing Burlington N. &
Santa Fe. Ry. Co. v. White, 548 U.S. 53, 68 (2006) (quotation marks omitted)). Thus,
for the reasons articulated in the Court’s discussion of Ortega’s disparate treatment
claim, a reasonable jury could find that Ortega’s reassignment would cause a
“reasonable worker” to be dissuaded from making or supporting a charge of
discrimination.
B.
Causal Connection
Ortega asserts that a causal connection between her protected activity and
“Defendants’ decision to reassign [her], or at the very least, not to return [her] to
Hedges—as Diane Atkinson had been returned,” 18 R. 95 at 18, can be inferred.
In her two-page discussion of retaliation, Ortega initially identifies her
reassignment as the adverse job action for the basis of her retaliation claim. R. 95 at
17-18 (“Plaintiff was displaced because she asked Principal Garcia for an
18
46
Ortega relies on the following circumstances: (1) the timing of her reassignment at
Hedges within one month of her ADA complaint; (2) Principal Garcia’s animosity
towards her regarding the completion of assignments and his failure to
accommodate Ortega; 19 (3) Principal Garcia’s refusal to sign off on Ortega’s short
term authorization request; (4) the more favorable treatment of coworkers with
respect to the purported endorsement requirements; and (5) Defendant’s purported
business justifications over time depending upon the adjudicative/investigative
forum. 20 R. 95 at 18.
There is no question that Ortega engaged in protected activity in May 2009,
and that Defendant was aware of that activity. For reasons articulated in the
accommodation”). Ortega subsequently suggests that she believes the failure to
“return her” was also an adverse action, stating that her alleged protected activity
was “at the very leas[t]” a substantial or motivating factor in Defendant’ decision
not to “return her” to Hedges, as Diane Atkinson had been “returned.” R. 95 at 18.
Courts have found that the failure to rehire or reappoint constitutes an
adverse employment action under Title VII, Keri v. Bd. of Trustees of Purdue Univ.,
458 F.3d 620, 644 (7th Cir. 2006) (finding that plaintiff suffered adverse
employment action when he was not reappointed as a professor). However, Ortega
states that Defendant mischaracterizes her claim into one for failure to rehire—
conceding that she does not bring such a claim—because she was not fired in 2009.
While Ortega claims that she should have been “returned” to Hedges, she fails to
articulate or develop a legal basis for that argument or a failure to rehire claim. It is
not this court’s role to develop the argument for her. Williamson v. Astrue, No. 08 C
3906, 2010 WL 2858834, at *12 (N.D. Ill. July 16, 2010) (citing Wells v. Unisource
Worldwide, Inc., 289 F.3d 1001, 1008 (7th Cir. 2002) (noting that “arguments that
are unsupported by pertinent authority, are waived”)).
19
Ortega fails to specify what alleged “animosity” she refers to.
As discussed above, supra at 35-39, analyzing Defendant’s business justifications,
the Court finds this argument unavailing.
20
47
Court’s discussion of Ortega’s disparate treatment discrimination claim, however,
the Court finds that Principal Garcia’s refusal to sign off on Ortega’s short term
authorization request, 21 and the purported inconsistencies in Defendants’ business
justification do not support an inference of a causal connection between her
protected activity and adverse action against her. The Court also finds that Ortega’s
arguments that Principal Garcia’s alleged “animosity” towards her regarding the
completion of assignments and his failure to accommodate Ortega do not
sufficiently support a causal link. 22 Principal Garcia placed demands on other
teachers, as well, “especially the sixth grade teachers, and he would not give the
teacher leeway on trying to get things done.” Def. 56.1 ¶ 42. Additionally, Ortega
While Principal Garcia signed a letter of intent for Patricia Nagy in 2010 for the
2010-11 school year, it was for different position (Librarian). R. 105 at 12 n. 7.
However, there is no evidence that Garcia signed letters of intent to teach during
the 2009-10 school year. R. 104, Ex. 3 ¶ 7. He did, however, decline two other
teachers’ requests along with Ortega’s request in 2009. R. 92, Ex. B at Bd. 1399.
Additionally, Ortega offers no evidence that she either applied for a Librarian
position at Hedges or asked Principal Garcia to sign a letter of intent for a
Librarian position.
21
The Court is not persuaded that Ortega’s “requests for accommodation from 20072009” alone, all of which took place prior to her ADA complaint, provide sufficient
support, to infer cause for her June reassignment. See supra, discussing Ortega’s
circumstantial evidence of a causal link for disparate treatment at 26-28.
Specifically with respect to those requests for accommodation that the Court did not
consider in analyzing Ortega’s disparate treatment claim as time-barred—Ortega’s
November 2007 request to Garcia for assistance moving books and school supplies
and Garcia’s January 2008 requests for additional information from Ortega
regarding her work as literacy coordinator—the Court is not persuaded that they
are sufficiently close in time to infer causation. See, e.g., Turner v. The Saloon, Ltd.,
595 F.3d 679, 687 (7th Cir. 2010) (noting suspicious timing alone is insufficient to
establish a genuine issue of material fact to support a retaliation claim and that
more than half a year separating complaints and plaintiff’s dismissal was “far too
long” to withstand summary judgment).
22
48
received more time to complete her list of student interventions as did all the other
teachers. Def. 56.1 ¶ 41; Pl. Addt’l. 56.1 ¶ 15.
With respect to suspicious timing, “[c]lose temporal proximity provides
evidence of causation and may permit a plaintiff to survive summary judgment
provided that there is other evidence that supports the inference of a causal link.”
Anderson v. Donahoe, 699 F.3d 989, 996 (7th Cir. 2012) (citing Scaife v. Cook Cnty.,
446 F.3d 735, 742 (7th Cir. 2006) (citation omitted)). Ortega made her ADA
complaint to the Board on May 9, 2009. She claims that Principal Garcia sent his
“recommendations” to Trujillo-Reyes regarding reassignments, including her own,
on May 30, 2009, the date listed on the HR Activity Profile form. R. 92, Ex. K.
Defendant claims this does not refute Principal Garcia’s statement in his
declaration that he in fact decided to redefine Ortega and other non-disabled
teachers’ positions to require a bilingual endorsement in February 2009, months
before her May 2009 complaint. Ortega failed to properly dispute this fact,
responding without citation that she could not admit or deny it. In his affidavit,
Principal Garcia states that he had to wait until mid-April/early May 2009 to
submit his position redefinition recommendations to the Work Force Planning Unit,
R. 76, Ex. K ¶ 12, and ultimately submitted seven teaching positions that required a
bilingual endorsement. However, he does not state why he had to wait or provide an
exact date or identify any other record evidence reflecting when he submitted those
49
recommendations to the WFPU. 23 In light of that, a genuine issue of material fact
exists as to when he made the decision and submitted the list to the WFPU.
The Court finds that through evidence of more favorable treatment with
regard to endorsements of similarly situated teachers Patricia Nagy and Justina
Suh together with the temporal proximity of Ortega’s May 2009 ADA complaint and
June 2009 placement to the reassigned teachers pool, Ortega has presented
sufficient evidence from which a reasonable jury could find that Defendant took an
adverse action against her because she engaged in protected activity. Simpson v.
Beaver Dam Cmty. Hospitals, Inc., 780 F.3d 784, 790 (7th Cir. 2015). Summary
judgment on her retaliation claim is therefore denied.
Conclusion
For the reasons stated, Defendants’ motion for summary judgment, R. 74, is
granted with respect to Ortega’s ADA failure to accommodate claims and denied
with respect to her disparate treatment and retaliation claims. The parties are
directed to contact the Court to schedule a status within 30 days of this Order.
ENTERED:
Thomas M. Durkin
United States District Judge
Dated: June 30, 2015
In her deposition, Trujillo-Reyes testified that the 5/30/2009 date at the bottom of
the HR Activity Profile form reflected “the date that this report was run,” but there
is no testimony establishing when she received Garcia’s recommendations. R. 92,
Ex. C at 57:15-58:1.
23
50
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