Aberman v. Chicago Public Schools et al
Filing
144
MEMORANDUM OPINION AND ORDER Signed by the Honorable Robert M. Dow, Jr. on 3/17/2017. (cdh, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
MARCIE ABERMAN,
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Plaintiff,
v.
BOARD OF EDUCATION OF THE CITY
OF CHICAGO and SUSAN A. LOFTON,
Defendants.
Case No. 12-cv-10181
Judge Robert M. Dow, Jr.
MEMORANDUM OPINION AND ORDER
Plaintiff Marcie Aberman brings this action against Defendants Board of Education of
the City of Chicago and Susan Lofton alleging age discrimination in violation of the Age
Discrimination in Employment Act (“ADEA”) and the Illinois Human Rights Act (“IHRA”)
against the Board (Count I); disability discrimination in violation of the IHRA and the
Americans with Disabilities Act (“ADA”) against the Board (Count II); violations of the
Rehabilitation Act § 504 against the Board (Count III); violations of the Family Medical Leave
Act (“FMLA”) against the Board and Lofton (Count IV); and breach of contract against the
Board (Count VII).1 Currently before the Court are the parties’ cross-motions for summary
judgment [111] and [129]. For the reasons stated below, the Court grants Defendant’s motion
for summary judgment on Plaintiff’s federal claims in Count I through Count IV. In view of
that disposition of the federal claims, Plaintiff’s remaining state law claims are dismissed
without prejudice. The Court will enter a final judgment and close the case.
1
Plaintiff originally brought additional claims, which the Court has already dismissed. [43.]
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I.
Background
The following facts are drawn primarily from the parties’ Local Rule 56.1 statements,
[113], [129, Exhibit 56], [129, Exhibit 55], and [136].
Plaintiff, a former high school
mathematics teacher, was given an “unsatisfactory” performance rating by a new principal,
Defendant Susan Lofton, and was then terminated from her tenured position and placed in the
Reassigned Teachers Pool. Plaintiff has an auditory impairment and was over the age of forty at
the time of reassignment.
A.
Local Rules
As a preliminary matter, the Court notes that Local Rule 56.1 requires a party moving for
summary judgment to submit a statement of material facts as to which the movant contends there
is no genuine issue and entitles the movant to judgment as a matter of law. Each party opposing
a motion for summary judgment is then required to file “any opposing affidavits and other
materials referred to in [Federal Rule of Civil Procedure 56(e)]” and a “concise response” to the
movant’s statement of facts containing “any disagreement, specific references to the affidavits,
parts of the record, and other supporting materials.” L.R. 56.1(b)(1), (3). “A general denial is
insufficient to rebut a movant’s factual allegations; the nonmovant must cite specific evidentiary
materials justifying the denial.” Malec v. Sanford, 191 F.R.D. 581, 584 (N.D. Ill. 2000). Local
Rule 56.1(b)(3)(C) is not satisfied by “purely argumentative denials,” id., or “evasive denials that
do not fairly meet the substance of the material facts asserted,” Bordelon v. Chi. Sch. Reform Bd.
of Trs., 233 F.3d 524, 528 (7th Cir. 2000). “The purpose of the 56.1 statement is to identify for
the Court the evidence supporting a party’s factual assertions in an organized manner[;] it is not
intended as a forum for factual or legal argument.” Malec, 191 F.R.D. at 585.
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Plaintiff’s Response to Defendants’ Statement of Facts [129, Exhibit 56] does not comply
with these requirements.
Many of Plaintiff’s “concise responses” do not directly address
Defendants’ statement of facts but rather amount to lengthy recitations of unrelated allegations.
[See, e.g., 129, at ¶ 19.] Additionally, many of Plaintiff’s denials assert facts without citations to
the record, [see, e.g., ¶¶ 4, 9, 20], cite exhibits which do not support the denial, [see, e.g., ¶¶ 30,
33], or contain blank spaces with incomplete citations, [see, e.g., ¶ 9 (“See Pl. Resp. to paragraph
__. Further Denied to the extent that Darroch, or any other administrator, actually demonstrated
a willingness or ability to address student behavior issues. __. Otherwise Denied.”).] Moreover,
some of the exhibits that Plaintiff cites are not in the record, [see, e.g., Exhibit 2; Group Exhibit
12], or are allegedly “included on [sic] disk and filed under seal,” [see, e.g., Exhibit 51; Group
Exhibit 8; Group Exhibit 10; Group Exhibit 11], yet said disk and courtesy copies of Plaintiff’s
filings were not delivered to the Court despite the Court’s explicit instructions that courtesy
copies should be delivered within 24 hours of filing and the Courtroom Deputy’s follow-up
request to Plaintiff’s counsel.
Further, Exhibit 3, which Plaintiff frequently cites, is purportedly an “affidavit of Marcie
F. Aberman.” However, the document is not sworn, signed, or dated. [129, Exhibit 3, at 10.]
An affidavit is admissible in a summary judgment proceeding only if it is sworn to before an
officer authorized to administer an oath, such as a notary public. See Pfeil v. Rogers, 757 F.2d
850, 859 (7th Cir. 1985). Since Exhibit 3 is not sworn to before an officer authorized to
administer an oath, it is not an admissible affidavit. Under 28 U.S.C. § 1746, an unsworn
declaration which is dated and signed by the declarant “under penalty of perjury” and verified as
“true and correct” may be used in lieu of a sworn affidavit to support or respond to a motion for
summary judgment. See DeBruyne v. Equitable Life Assur. Soc’y, 920 F.2d 457, 471 (7th Cir.
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1990). Although Exhibit 3 contains the language “I certify under penalty of perjury that the facts
stated herein are true and correct,” it is not signed or dated, and thus is not admissible as an
unsworn declaration under 28 U.S.C. § 1746.2 See Trapaga v. Central States Joint Bd. Local 10,
2007 WL 1017855 (N.D. Ill. March 30, 2007).
Because of these shortcomings in Plaintiff’s filings, where Plaintiff responds to
Defendants’ Rule 56.1 Statement of Facts with an unsupported denial, a denial allegedly
supported by an exhibit that is inadmissible or not in the record, an argument, or a legal
conclusion, the Court will not consider that response, and Defendants’ statement of fact will be
deemed admitted. See L.R. 56.1(a), 56.1(b)(3)(B); see also Malec, 191 F.R.D. at 584; MooreFotso v. Bd. of Educ. of the City of Chicago, 2016 WL 5476235, at *2 (N.D. Ill. Sept. 29, 2016).
Similarly, where Plaintiff’s Rule 56.1(c) Statement of Additional Facts [129, Exhibit 55]
contains unsupported assertions of fact, the statements will not be considered. Although the
Court will exercise its discretion in the direction of leniency and consider the portions of
Plaintiff’s statements and responses that arguably meet the requirements of the local and federal
rules, Modrowski v. Pigatto, 712 F.3d 1166, 1169 (7th Cir. 2013) (making clear that, although
district courts have discretion to require strict compliance with Rule 56.1, “[i]t does not follow
* * * that district courts cannot exercise their discretion in a more lenient direction”), the Court
notes that Plaintiff is not left with many facts to stand on. See Gross v. Town of Cicero, Ill., 619
F.3d 697, 702 (7th Cir. 2010) (striking the parties’ factual assertions that lacked direct citation to
easily identifiable support in the record and explaining that “Judges are not like pigs, hunting for
truffles buried in [the record].” (citation and internal quotation marks omitted)).
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Even if the Court were to consider Exhibit 3, it would not save the day for Plaintiff and defeat
Defendants’ motion for summary judgment, as discussed below.
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The Court also notes that Plaintiff’s brief improperly cites to raw record materials rather
than to its Local Rule 56.1 statement, which is a blatant violation of the local rules. This
violation of Local Rule 56.1, standing alone, is enough to deny Plaintiff’s partial motion for
summary judgment [129]. See Sledge v. Bellwood Sch. Dist. 88, 2011 WL 2457920, at *2 (N.D.
Ill. June 17, 2011) (denying summary judgment motion based on movant’s violation of Local
Rule 56.1); Daoust v. Abbott Labs., 2006 WL 2711844, at *4 (N.D. Ill. Sept. 19, 2006) (“Citing
directly to the record in the memorandum statement of facts, as [the movant] does here, rather
than citing to its 56.1(a)(3) statement, negates the purpose of the summary judgment exercise.”).
However, the Court will exercise leniency and consider the merits of Plaintiff’s motion.
Finally, the Court notes that despite having been granted several extensions of time to file
a reply brief and the Court’s admonition that given the well-documented history of delay in this
case, no further extensions would be granted absent the most extreme of emergencies, Plaintiff
has failed to file a reply brief. Thus, the Court will decide the parties’ cross-motions for
summary judgment without Plaintiff’s reply brief. See Raymond v. Ameritech Corp., 442 F.3d
600, 606 (7th Cir. 2006) (district judge acted within his discretion by not excusing party’s delay
in filing response to summary judgment motion where case had dragged on for over one year,
party had already obtained one extension to file response, and court gave clear notice of
deadline).3
On January 31, 2017 counsel for Plaintiff appeared in court on Plaintiff’s motion for extension of time
to file the reply brief and represented that the brief was ready to file. Accordingly, the Court granted the
motion [see 141]. Inexplicably, the brief was not filed as of the time that the Court began working on this
opinion. Finally, on March 15, 2017, Plaintiff’s counsel sent an email to the Courtroom Deputy stating as
follows: “It came to my attention that I was removed from the Master List of Attorneys after January
2017. I have been working to resolve the situation. But, until it is resolved, I have avoided making any
filings with the court, in deference to the rules. I hope resolve the issue in the next few weeks.” Given
that Plaintiff has filed a 28-page brief in opposition to Defendant’s motion for summary judgment and in
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B.
The Facts
Turning to the facts of the case, Plaintiff worked as a mathematics teacher at Nicholas
Senn High School (“Senn”) from September 2005 through July 8, 2011.
[113, at ¶ 3.]
Defendant Susan Lofton was Principal of Senn from May 3, 2010 through July 20, 2015 and was
Plaintiff’s direct supervisor. [Id. at ¶ 4.] During the 2010–2011 school year, Assistant Principals
(“A.P.”) David Darroch and Carter Carey assisted Principal Lofton in the administration of Senn.
[Id.]
1.
Plaintiff’s Performance for the 2010–2011 School Year
During the 2010–2011 School Year, Plaintiff was observed three times by Defendant
Lofton (November 22, 2010, February 2, 2011, and March 15, 2011) and once by A.P. Darroch
(March 14, 2011). [See id. at ¶ 8.] A.P. Carey also observed Plaintiff during his periodic teacher
observations. [Id. at ¶ 11.]
a.
Defendant Lofton’s Observations
On November 22, 2010, Defendant Lofton conducted a formal observation of Plaintiff’s
seventh period algebra class. [Id. at ¶ 12.] A formal observation lasts a full class period and
includes an examination of lesson plans, unit maps, gradebooks, and any evidence the teacher
wants to provide. [Id.] During the observation, Defendant Lofton took notes and provided
written feedback using an observation checklist. [Id.] On the Classroom Teacher Visitation
Form, Defendant Lofton checked the “weakness box” next to fourteen of the provided
performance criteria. [Id.] The weaknesses she observed included pedagogy issues, such as
Plaintiff’s failure to apply contemporary principles of learning theory and teaching methodology
support of her cross-motion, the Court concludes that the issues have been adequately briefed and waiting
an indeterminate time for Plaintiff’s counsel to be in position to file a reply brief is not warranted.
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and failure to establish positive learning expectation standards for all students. [Id.] Defendant
Lofton also observed weaknesses in basic teacher duties, such as Plaintiff’s failure to keep
current records of pupils’ achievements and maintain an accurate gradebook, and in poor
classroom management, which caused Plaintiff’s students to be off task and to have private
conversations during the lesson. [Id.] According to Defendant Lofton, Plaintiff also failed to
adequately communicate the academic progress, attendance, and conduct of students to their
parents and failed to initiate appropriate conferences with parents and administrators. [Id.]
Defendant Lofton met with Plaintiff on December 2, 2010 for a post-observation conference and
provided her with a list of suggestions for improvement. [Id. at ¶ 13.] On February 22, 2011,
Defendant Lofton conducted another observation of Plaintiff’s seventh period algebra class and
did not see any improvement in Plaintiff’s teaching performance. [Id. at ¶ 14.]
On March 15, 2011, Defendant Lofton conducted another formal observation of
Plaintiff’s eighth period algebra class. [Id. at ¶ 21.] She again took copious notes and provided
written feedback on an observation checklist and during the post-observation conference.
Defendant Lofton observed that Plaintiff exhibited no improvement in classroom management,
did not differentiate instruction, did not implement vocabulary strategies, and that the rigor of the
lesson was too low. She also noted that Plaintiff was not using the recommendations she had
given to Plaintiff during previous observations. During the lesson, she found that Plaintiff
exhibited student engagement and pacing issues and did not respond to students; the classroom
was disruptive with one third to more than one half of students off task at any given moment; and
the lesson was teacher-centered and students did not try to do the work because they had learned
that Plaintiff would do it for them. [Id.] On the Classroom Teacher Visitation Form, Defendant
Lofton checked the “weakness box” next to fifteen of the provided performance criteria, noting
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pedagogical, organizational, classroom management, and student-relationship weaknesses. [See
id.]
Defendant Lofton observed that there was no improvement in Plaintiff’s teaching
performance between the November 22, 2010 and March 15, 2011 observations. [Id. at ¶ 23.]
On March 16, 2011, Defendant Lofton held a post-observation conference during which she gave
Plaintiff a list of suggested improvements. [Id. at ¶ 22.]
Plaintiff testified in her deposition that she agreed with the weaknesses identified by
Defendant Lofton but that Defendant Lofton had “used the worst class to do the evaluation on.”
[See id. at ¶ 24; id., Exhibit B, 102:23–104:13; 244:6–12.] However, Plaintiff also testified that
during the 2010–2011 school year, she never complained to Defendant Lofton about the students
in her algebra class, which is the class that Defendant Lofton observed. [Id. at ¶ 7; id., Exhibit B,
82:17–21.] Plaintiff also agreed that she had trouble managing the students in her seventh and
eighth period algebra classes. [Id. at ¶ 25.]
b.
Assistant Principals’ Observations
Defendant Lofton was not the only administrator who noticed Plaintiff’s poor teaching
performance. On March 14, 2011, A.P. Darroch observed Plaintiff’s seventh and eighth period
algebra classes. [Id. at ¶ 16.] He took nine pages of notes during the observation, noted that he
was concerned by Plaintiff’s subpar teaching performance, and checked the “weakness” box next
to eleven of the evaluation criteria. [Id.] Like Defendant Lofton, A.P. Darroch noted that
Plaintiff failed to apply contemporary principles of learning theory and teaching methodology
and failed to show evidence of student performance and progress. [Id.] He observed several
issues related to Plaintiff’s classroom managements and relationships with her students,
including (1) an excessive rate of off-task behavior, (2) a negative classroom climate impacting
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teacher-student relationships, (3) Plaintiff’s failure to exhibit an understanding and respect for
students as individuals, and (4) Plaintiff’s use of a critical tone with students. [Id.]
In his view, Plaintiff’s “punitive and negative classroom management style * * *
contribut[ed] to discipline problems” and suggested that Plaintiff “consider positive tone and
reinforcements.” [Id.] According to A.P. Darroch, during the lesson, Plaintiff relied heavily on
teacher-led instruction and demonstration and did not allow students to “own the lesson.” [Id.]
His notes indicate that Plaintiff engaged one student in setting up a formula. [129, Exhibit 56, at
¶ 16.] However, A.P. Darroch explained that Plaintiff did all the math problems and and did not
involve or engage students. [113, at ¶ 16.] He noted that Plaintiff failed to address numerous
student questions and requests. [Id.] After the March 14, 2011 classroom visit, A.P. Darroch
spoke with Defendant Lofton about his observations and expressed his concern regarding
Plaintiff’s ability to manage her classroom and to effectively teach her students. [Id. at ¶ 20.]
On March 16, 2011, A.P. Darroch had a discussion with Plaintiff about his observation
and presented suggestions for improvement. [Id. at ¶ 17.] Plaintiff testified in her deposition
that she agreed with A.P. Darroch’s notes on the March 14, 2011 Classroom Visitation Form that
stated: “overreliance on teacher-led instruction / demonstrate or provide for greater student
ownership / higher-order thinking.” [Id. at ¶ 17.] Plaintiff further testified that she did not know
if she believed that A.P. Darroch wanted her out of Senn and that she did not have any problems
with him. [See id. ¶ 19; id. Exhibit B, 272:5–12.]
A.P. Carey periodically conducted teacher observations and visited classrooms while
class was in session. [Id. at ¶ 11.] He observed that Plaintiff did not establish a positive learning
culture in her classroom, often yelled at her students, had a chaotic classroom with students
yelling across the classroom, getting up from their seats and moving around without permission,
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and openly defying Plaintiff.
[Id.]
He believed that Plaintiff was deficient in classroom
management and that this had a negative impact on instruction. [Id.] Additionally, students
complained to A.P. Carey that they were not learning anything from Plaintiff. [Id.]
c.
Plaintiff’s Unsatisfactory Rating
Defendant Lofton gave Plaintiff an unsatisfactory rating on March 21, 2011. At the same
time, she also presented Plaintiff with a remediation plan, per Board policy and the Collective
Bargaining Agreement (“CBA”) between the Board and the Chicago Teachers Union. [Id. at
¶ 32.] According to Defendant Lofton, she created the remediation plan for Plaintiff in hopes
that her performance would improve over the course of the following year. [Id.] Plaintiff alleges
that by March 30, 2011, there was a posting for an immediate opening in the Senn mathematics
department and thus Defendant Lofton had started the process of hiring Plaintiff’s replacement.
[129, Exhibit 56, at ¶ 32; see also 129, Exhibit 14.]
2.
Fitness for Duty Examination and FMLA Leave
a.
Plaintiff’s Auditory Impairment
Plaintiff was diagnosed with hearing loss as a child. [113, at ¶ 5.] Plaintiff wore a
hearing aid as a child, but the material would irritate her ear.
[Id., Exhibit B (Aberman
Deposition), 123:6–8, 124:9–16.] A medical specialist suggested that Plaintiff use a hearing aid
prior to the 2010–2011 school year, but Plaintiff never wore a hearing aid when she taught at
Senn. [Id. at ¶ 5.] Plaintiff never told Defendant Lofton that she had a hearing impairment and
did not ask Defendant Lofton, or any previous principals, for an accommodation for her hearing
disability. [Id. at ¶ 6.] The first time that Plaintiff informed anyone at the Board that she had an
auditory impairment was when she requested an accommodation in 2011. [Id.] Plaintiff alleges
that because she had this hearing impairment since early childhood, her voice “evidences an
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obvious difference that is readily associated with the hearing impairment.” [129, Exhibit 55, at
¶ 26.]
b.
Events Leading Up to Fitness for Duty Examination
During post-observation conferences, Defendant Lofton asked Plaintiff if she heard what
her students were saying during class (such as asking for help or openly talking about their social
lives) and why she did not respond to them. [Id. at ¶ 34.] Plaintiff responded that she could hear
them but that she wanted to move on in the lesson. Plaintiff asserted that the problem was that
the students were troublesome and difficult to manage. Defendant Lofton asked Plaintiff what
additional assistance she might need aside from the list of suggestions presented to her. Plaintiff
responded that she did not need anything and that she would work on the listed suggestions.
[Id.]
On or about January 11, 2011, two school-wide announcements were made on Senn’s
intercom system instructing teachers to keep students in the classroom until further notified
because it was a “high-risk” day. [Id. at ¶ 35.] A.P. Carey informed Defendant Lofton that he
found one of Plaintiff’s students in the hall during class time that day. Defendant Lofton issued
Plaintiff a Cautionary Note, which is a non-disciplinary written statement given to an employee
advising her that the described misconduct is unacceptable and will lead to formal discipline if
repeated. Defendant Lofton alleges that she spoke with Plaintiff about the incident and asked her
if the intercom in her room was functioning, and Plaintiff told Defendant Lofton that the
intercom worked fine. [Id.]
c.
Fitness for Duty Examination
Defendant Lofton felt that Plaintiff’s teaching performance was unsatisfactory and had
concerns about student safety in an environment where Plaintiff was not able to monitor her
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surroundings and respond to student needs. [Id. at ¶ 37.] Because of these concerns, Defendant
Lofton submitted a Request for Fitness for Duty Examination form to the Board’s Office of
Human Capital. [Id.] Board Rule, Section 4-13, Health Examination, states, in relevant part:
If in the opinion of the Chief Executive Officer, or his designee, any employee of
the Chicago Public Schools or Chicago School Reform Board of Trustees is
physically and/or mentally unfit to perform safety and/or efficiently his job duties,
the Chief Executive Officer or his designee may require an appropriate health
examination by a medical professional(s) selected by the Chief Executive Officer.
[Id.at ¶ 36.] On the Request for Fitness for Duty Examination form, Defendant Lofton noted that
Plaintiff has no medical documentation or accommodation on file for any physical condition,
such as hearing loss. [Id., Exhibit C, Attachment 8 (Request for Fitness for Duty Examination),
at 2.] Defendant Lofton further noted that after an informal visit to Plaintiff’s class, she noticed
that Plaintiff frequently did not seem to hear or respond to students. In a follow up conversation
with one of the assistant principals, she was told that Plaintiff has a hearing problem to which she
does not admit. Defendant Lofton explained that this was verified by the former principal of
Senn. The former principal never called for a fitness for duty exam, but he did make informal
accommodations by ensuring that Plaintiff had a reduced roster of students so that she would not
have to supervise as many students. [Id.] Defendant Lofton noted that this created an inequity
of workload within the math department, so Plaintiff was given full rosters of students for the
2010–2011 school year. The Board’s Human Capital Office (now known as the Talent Office)
reviewed the Fitness for Duty request and found that the evaluation was warranted. [Id. at ¶ 38.]
On Monday, March 21, 2011, when Defendant Lofton informed Plaintiff that she was referring
her for the exam, Plaintiff stated that she did not have anything wrong with her and expressed
that she did not understand why she had to go for a Fitness for Duty examination. [Id. at ¶ 40.]
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Dr. Homer Diadula of MercyWorks conducted Plaintiff’s Fitness for Duty exam on
March 22, 2011. [Id. at ¶¶ 39, 42.] He submitted to the Board a report in which he opined that
Plaintiff was not able to perform her duties due to her significant hearing loss. [Id. at ¶ 42.] On
March 28, 2011, Defendant Lofton received an email from the Board, informing her that Plaintiff
was found unfit for duty and would be placed on involuntary personal illness leave from March
28, 2011 through March 28, 2012. [Id. at ¶ 43.] The Board informed Plaintiff that she was
placed on involuntary personal illness leave, which would count as leave time under the Family
Medical Leave Act. [Id. at ¶ 44.]
d.
FMLA Leave
After being found unfit for duty, Plaintiff saw her personal physician regarding her
hearing impairment. [Id. at ¶ 45.] The Board received a report dated September 13, 2011, from
one of Plaintiff’s audiologists, Mary Ann Jordan, stating that “[Plaintiff] is capable and able to
function in the classroom setting when she is wearing her hearing aids.” [Id. at ¶ 46.] Dr.
Diadula of MercyWorks reviewed Jordan’s report and sent the Board a letter, stating that
“[Plaintiff’s] new set of hearing aids will certainly make her capable to [sic] function well in the
classroom and will positively impact her effectiveness as a teacher.” [Id. at ¶ 47.] Based on
Jordan’s and Dr. Diadula’s representations regarding Plaintiff’s ability to function in the
classroom while wearing hearing aids, the Board informed Plaintiff that as of September 15,
2011, she would be reinstated. [Id. at ¶ 48.] Thus, Plaintiff’s leave extended from March 28,
2011 through September 15, 2011. When Plaintiff returned to work in the fall of 2011, she
started wearing hearing aids to teach in the classroom. [See id. at ¶ 50; id., Exhibit B, 187:13–
17.] The hearing aids did not irritate her ears. [Id., Exhibit B, 4–6.] She continued to wear
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hearing aids from the time she returned from her leave of absence and was placed into the
Reassigned Teacher Pool (discussed below) until she retired. [Id. at ¶ 50.]
The Board’s Human Capital Office was responsible for processing reinstatements from
leaves of absence. [Id. at ¶ 38.] Defendant Lofton played no role in determining whether or
when Plaintiff was fit to return from her involuntary personal illness leave. [Id. at ¶ 49.]
Defendant Lofton also played no role in determining where Plaintiff would be assigned upon her
return from leave. [Id.; 113, Exhibit C (Lofton Declaration), ¶ 34.]
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3.
Plaintiff’s Termination from Senn and Placement in the
Reassigned Teacher’s Pool
In the meantime, in the spring of 2011, the Board announced that it intended to close
Senn Achievement Academy (“SAA”) in the fall of 2011. [Id. at ¶¶ 56, 58.] SAA was a
separate high school program that shared space with Senn. [Id. at ¶ 56.] SAA had a separate
student body and teaching staff from Senn, but Senn and SAA shared an administrative staff, so
when Principal Lofton was first hired at Senn, she was principal of both Senn and SAA. [Id.]
After SAA closed, Senn and SAA were treated as one unit.
[Id. at ¶ 58.] The teachers from
SAA were absorbed into Senn to the extent that positions were available.
[Id. at ¶ 59.]
However, after merging the two facilities, there were more teachers assigned to Senn than
available positions. [Id. at ¶ 59.]
At the time reassignment decisions were made, the Board had adopted Board Policy 110622-P01, which allowed the Board to conduct school-based layoffs by first laying off teachers
who were not properly certified and then those who were rated unsatisfactory before considering
seniority in layoffs. [Id. at ¶ 57.] The Human Capital Office conducted a review of budgetary
adjustments at Senn to determine whether the former SAA teachers could be moved into
positions at Senn or whether those teachers would be reassigned. [113 at ¶ 60.] Ultimately, five
tenured teachers, including Plaintiff, were separated from Senn and placed in the Reassigned
Teachers Pool in this process. [Id. at ¶¶ 60, 62.] The Human Capital Office identified these
separations from Senn as having occurred as a result of “Drops in Enrollment” primarily due to
the loss of the SAA students. [Id. at 60.] On July 8, 2011, while Plaintiff was on FMLA leave,
the Human Capital Office informed her that she was being placed in the Reassigned Teacher
Pool. [112, Exhibit 25 (Plaintiff’s Reassignment Letter).] Plaintiff was 58 years old at the time.
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Teachers in the Reassigned Teacher Pool receive full pay and benefits while they attempt
to find another job in the district. [Id. at ¶ 61.] While in the Reassigned Teacher Pool, Plaintiff
filled in for teachers who were absent, like a substitute teacher. [Id., Exhibit B, 88:24–89:11.] A
displaced tenured teacher “continues to be a reassigned teacher for no longer than ten school
months or until a new appointed position is offered and accepted.” [129, Exhibit 25.]
In June 2011, an SAA math teacher, Scott Wilkerson, was assigned to position number
130376. [Id. at ¶ 64.] When SAA closed, Wilkerson was reassigned to Plaintiff’s position,
number 119230. Wilkerson was able to able to take over Plaintiff’s position because, unlike
Plaintiff’s, his most recent performance rating was not “unsatisfactory.” [Id.] Plaintiff applied
for other jobs at Chicago Public Schools. [See id. at ¶ 74.] However, Plaintiff testified that some
of the schools she applied to did not have vacant positions and that she did not apply to any high
schools because she did not want to teach teenagers anymore. [Id.] Plaintiff’s Illinois State
Board Education credentials allowed her to teach kindergarten through fifth grade and only math
to grades 9 through 12. [Id. at ¶ 66.] Plaintiff retired on March 12, 2013. [Id. at ¶ 3.]
4.
Request for Accommodation
On August 4, 2011, while she was on FMLA leave, Plaintiff asked the Board to
accommodate her with an FM bluetooth streaming device. [Id. at ¶ 51.] Plaintiff requested to
use the FM bluetooth device in lieu of hearing aids. [Id., Exhibit B, 130:1–3.] The Board’s
ADA investigator conducted an investigation into whether the bluetooth device would be a
reasonable accommodation for Plaintiff’s disability. [Id. at ¶ 52.] The investigator learned from
Plaintiff’s audiologist Jordan that the device would only aid Plaintiff in small group settings or if
the students in her classroom were able to pass a microphone around the room. [Id.] Jordan also
informed the Board’s ADA investigator that the bluetooth device may not aid Plaintiff in a
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setting in which any students spoke at once. [Id.] Thus, the Board sent Plaintiff a letter on or
about September 23, 2011—when Plaintiff was in the Reassigned Teachers Pool— informing
her that her request for a FM bluetooth streamer device was denied as ineffective to
accommodate Plaintiff’s disability in the workplace. [Id. at ¶ 55.]
C.
Procedural Background
Plaintiff filed suit in the Circuit Court of Cook County on December 3, 2012, and
Defendants removed the case to federal court on December 27, 2012. [1.] Defendants moved to
dismiss, arguing that because Plaintiff elected to file a charge with the Illinois Department of
Human Rights, under the Illinois Human Rights Act (“IHRA”), she could not commence an
action in the Circuit Court of Cook County. The Court agreed and granted Defendants’ motion
to dismiss on September 17, 2013, as the IHRA statutory scheme expressly states that “[i]f the
complainant chooses to file a request for review with the Commission, he or she may not later
commence a civil action in a circuit court.” 775 ILCS 5/7A—102(D)(3). [21.] However,
Plaintiff then filed a motion for reconsideration, clarifying that she first filed suit in state court
and then sought review with the Illinois Department of Human Rights. [22.] The Court granted
Plaintiff’s motion for reconsideration, noting that Plaintiff’s explanation of the timeline would
have been helpful in response to Defendants’ motion to dismiss, but concluding that since
Plaintiff did not commence the lawsuit after a request for review with the Illinois Department of
Human Rights, Plaintiff could proceed with the lawsuit. [27.]
Plaintiff filed an amended complaint on April 2, 2014. [33.] On September 30, 2014, the
Court granted in part and denied in part Defendants’ partial motion to dismiss. [43.] Plaintiff
again moved for reconsideration, [45], which the Court denied, [52]. Currently before the Court
are the parties’ cross-motions for summary judgment on Plaintiff’s remaining claims: allegations
17
of age discrimination in violation of the ADEA and the IHRA against the Board (Count I);
disability discrimination in violation of the ADA and the IHRA against the Board (Count II);
violations of the Rehabilitation Act § 504 against the Board (Count III); violations of the FMLA
against the Board and Lofton (Count IV); and breach of contract against the Board (Count VII).
II.
Legal Standard
Summary judgment is proper where there is “no dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A genuine issue of
material fact exists if “the evidence is such that a reasonable jury could return a verdict for the
nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). 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). In evaluating a motion for
summary judgment, the Court will construe all facts in the light most favorable to the nonmoving
party and draw all reasonable inferences in favor of the nonmoving party. Bell v. Taylor, 827
F.3d 699, 704 (7th Cir. 2016). Where, as here, the parties have submitted cross-motions for
summary judgment, the Court “take[s] the motions one at a time, construing all facts and
drawing all reasonable inferences in favor of the non-moving party.” Black Earth Meat Mkt.,
LLC v. Vill. of Black Earth, 834 F.3d 841, 847 (7th Cir. 2016). However, the Court will not
draw inferences that are “supported by only speculation or conjecture,” Williams v. Brooks, 809
F.3d 936, 944 (7th Cir. 2016) (quoting Argyropoulos v. City of Alton, 539 F.3d 724, 732 (7th Cir.
2008)) (internal citations omitted), and “[c]onclusory allegations alone cannot defeat a motion
for summary judgment.” Thomas v. Christ Hosp. & Med. Ctr., 328 F.3d 890, 892 (7th Cir.
2003).
18
It is not the role of the Court to scour the record in search of evidence to defeat a motion
for summary judgment; instead, the nonmoving party bears the responsibility of identifying
evidence to defeat summary judgment. Harney v. Speedway SuperAmerica, LLC, 526 F.3d
1099, 1104 (7th Cir. 2008). To avoid summary judgment, the nonmoving party must go beyond
the pleadings and “set forth specific facts showing that there is a genuine issue for trial.”
Anderson, 477 U.S. at 250. Summary judgment is proper if the nonmoving party “‘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.’” Ellis v. CCA of Tennessee LLC, 650
F.3d 640, 646 (7th Cir. 2011) (quoting Celotex, 477 U.S. at 322). The non-moving party “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). In other
words, the “mere existence of a scintilla of evidence in support of the [non-movant’s] position
will be insufficient; there must be evidence on which the jury could reasonably find for the [nonmovant].” Anderson, 477 U.S. at 252.
III.
Analysis
A.
Age Discrimination and Disability Discrimination (Counts I and II)
Plaintiff alleges age and disability discrimination under two theories: disparate impact
and intentional discrimination. The Court will address each theory in turn. Plaintiff brings her
discrimination claims under federal law (ADA and ADEA) and state law (IHRA). The Court
will focus on Plaintiff’s claims under federal law in this section and address all of Plaintiff’s state
law claims in Subsection D below.
19
1.
Disparate Impact Theory
For a disparate impact claim of discrimination, a plaintiff must establish that a particular
employment practice causes a disparate impact on a member of a protected class. Puffer v.
Allstate Ins. Co., 675 F.3d 709, 717 (7th Cir. 2012) (citing 42 U.S.C. § 2000e–2(k)). Plaintiff
must identify “the specific employment practice,” id., and establish causation by offering
“statistical correlation evidence demonstrating that a specified employment practice of the
defendant has a disproportionately negative effect on members of the plaintiff’s protected class.”
Noreuil v. Peabody Coal Co., 96 F.3d 254, 258 (7th Cir. 1996).
Here, Plaintiff fails to identify a specific employment practice that allegedly has a
disparate impact on teachers “at least 40 years of age,” 29 U.S.C. § 631(a), or on disabled
teachers. She argues that Defendant Lofton “used her position to inject her personal bias into
(1) class assignments, (2) performance reviews, (3) teacher discipline, (4) application of school
policies, (5) hiring and firing decisions.” [129, at 10.] However, this general allegation does not
identify a specific employment practice. See Puffer, 675 F.3d at 717 (explaining that it is not
enough to “point to a generalized policy” that leads to a disparate impact). Further, Plaintiff does
not cite any admissible evidence to support this allegation.
Plaintiff’s disparate impact claim also fails because Plaintiff has not provided statistical
support for her claim. Plaintiff does not refute or even respond to Defendants’ allegation that
Plaintiff conducted no school-wide discovery on the Board’s evaluation or disciplinary process.
Plaintiff cites to Exhibit 1 as “undisputed data” to support her disparate impact claim. [129, at
11]. However, Exhibit 1 consists of five tables with random numbers and names of employees.
Plaintiff provides no foundation for this exhibit, does not identify the source or bases of the
information, and does not explain who created the tables, the relevance of each table, what the
20
color-coding in the tables means, why some names are stricken, or what these tables purport to
establish. See Jagla v. LaSalle Bank, 2006 WL 2796481, at *11 (N.D. Ill. Sept. 26, 2006)
(striking exhibits that lacked a proper foundation). Based on the complete absence of any
evidentiary basis for Plaintiff’s claim, the Court grants summary judgment for Defendants on
Counts I and II under the theory of disparate impact.
2.
Intentional Discrimination Theory
Plaintiff also brings claims against the Board for intentional discrimination under the
ADA and the ADEA.
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). The ADEA prohibits an
employer from discriminating against an individual on the basis of age. 29 U.S.C. § 623(a). The
Seventh Circuit recently jettisoned the long-standing practice of distinguishing between the
“direct” and “indirect” methods of analyzing discrimination claims. Ortiz v. Werner Enters.,
Inc., 834 F.3d 760, 763–66 (7th Cir. 2016). Ortiz instructs courts to simply ask “whether the
evidence would permit a reasonable factfinder to conclude that the plaintiff’s * * * proscribed
factor caused the discharge[.]” Id. at 765. The Court is to consider the evidence as a whole,
rather than asking whether any particular piece of evidence proves the case by itself. Id.
Ortiz did not, however, alter the burden-shifting framework set forth in McDonnell
Douglas v. Green, 411 U.S. 792, 802–04 (1973). Id. at 766. Rather, Ortiz makes clear that
“McDonnell Douglas is not the only way to assess circumstantial evidence of discrimination.”
David v. Bd. of Trustees of Cmty. Coll. Dist. No. 508, 846 F.3d 216, 224 (7th Cir. 2017); Zegarra
v. John Crane, Inc., 2016 WL 6432587, at *10 (N.D. Ill. Oct. 31, 2016) (“[T]he pattern identified
21
in McDonnell Douglas is just one way that the record evidence could enable a reasonable juror to
find discrimination.”). Because the McDonnell Douglas framework survives Ortiz and because
the parties have presented their arguments in those terms,4 the Court will first assess Plaintiff’s
claim under McDonnell Douglas. The Court will then “assess cumulatively” all the evidence
presented by Plaintiff to determine whether it permits a reasonable factfinder to determine that
her termination from Senn and placement in the Reassigned Teachers Pool was attributable to
her age and disability. David, 846 F.3d at 224; see also Smart v. DHL Express (USA), Inc., 2017
WL 449178, at *3 (N.D. Ill. Feb. 2, 2017).
a.
McDonnell Douglas
Under the burden-shifting framework of McDonnell Douglas, a plaintiff must first state a
prima facie case of discrimination by demonstrating, by a preponderance of the evidence, that:
(1) she is a member of a protected class; (2) at the time of termination, she was meeting her
employer’s legitimate employment expectations; (3) she suffered an adverse employment action;
and (4) she was treated less favorably than younger or nondisabled employees who are “similarly
situated.” See Peele v. Country Mut. Ins. Co., 288 F.3d 319, 326 (7th Cir. 2002). Once Plaintiff
establishes a prima facie case of age or disability discrimination, the burden shifts to the
employer to articulate “a legitimate, non-discriminatory reason for the employee’s termination.”
Id. “An employer that has proffered a legitimate, non-discriminatory reason for the discharge is
4
Defendants filed their motion for summary judgment [111] on June 17, 2016, prior to the Seventh
Circuit issuing its opinion in Ortiz, 834 F.3d 760, on August 19, 2016. However, Plaintiff filed her crossmotion for summary judgment [129] on October 13, 2016, and Defendants filed their response to
Plaintiff’s motion for summary judgment and reply in support of their motion for summary judgment
[135] on November 18, 2016. Thus, both parties should have been aware of Ortiz and should have
addressed that now-controlling law.
22
entitled to summary judgment unless the plaintiff presents evidence that the proffered reasons are
pretexts for discrimination.” Collier v. Budd Co., 66 F.3d 886, 889 (7th Cir. 1995).
Here, Defendants concede that Plaintiff was over the age of forty and disabled, and thus a
member of the relevant protected classes. Additionally, Defendants do not dispute that Plaintiff
suffered an adverse employment action. See Ortega v. Chicago Public School of the Board of
Edu. of the City of Chicago, 2015 WL 4036016, at *13 (N.D. Ill. June 30, 2015) (concluding that
a reasonable jury could find that reassignment to the reassigned teachers pool was an adverse
employment action, where the policy set forth that teachers in the pool would be laid off if they
were unable to secure another job in ten months). Defendants argue, however, that Plaintiff was
not meeting her employer’s legitimate employment expectations and that Plaintiff cannot point to
a similarly situated comparator who was treated more favorably.
The record is replete with evidence of Plaintiff’s performance problems. Defendant
Lofton, A.P. Darroch, and A.P. Carey all observed Plaintiff’s teaching during the 2010–2011
school year and noted problems with her performance.
Plaintiff failed to differentiate
instruction, meaning that she was unable to modify her teaching strategy to meet the needs of all
of her students. [113, at ¶¶ 21, 26.] Thus, many students were not able to absorb the lessons
Plaintiff was attempting to teach. They also observed that Plaintiff’s lessons were teachercentered, which means that students did not try to do the work because they had learned that
Plaintiff would do it for them. [Id. at ¶¶ 16, 21] For example, Defendant Lofton observed that
Plaintiff presented math problems on the overhead but tended to do most of the problems herself.
[Id. at ¶ 26.] Students who did ask for help or showed confusion were not given additional
explanations. [Id.] Plaintiff presented lessons at a low level of rigor, so students were not being
presented math lessons at a high school level. [Id. at ¶ 27.] Additionally, the administrators
23
observed that Plaintiff struggled with classroom management, as students were off-task,
disruptive, having personal conversations, shouting, and making inappropriate comments. [Id. at
¶ 29.] Defendant Lofton rated Plaintiff “unsatisfactory” for the 2010–2011 school year, and A.P.
Darroch and A.P. Carey agreed that Plaintiff’s performance was unsatisfactory. [Id. at ¶ 31.]
Plaintiff argues that her credentials “prov[e] that she meets the requirements for the
position.” [129, at 17.] However, this is not enough to show that she was meeting Defendants’
employment expectations. Further, Plaintiff seems to ignore her admission that her performance
was unsatisfactory during the 2010–2011 year. Plaintiff testified in her deposition that she
agreed with the weaknesses identified by Defendant Lofton after the March 15, 2011
observation, including that she was not using recommendations from a previous observation, she
was not responding to students, students were mostly off task, the classroom was disruptive with
more than half of the students off task at any given time, the lesson was teacher-centered with
students learning not to try because the teacher will do it for them, and there were engagement
and pacing issues.
[See id. at ¶ 24; id., Exhibit B, 102:23–104:13; 244:6–12.]
Plaintiff
expressed that she agreed with these observations but that she wished Defendant Lofton had
observed a different class, instead of her “worst class.” [Id. at ¶ 24; id., Exhibit B, 103:11–20,
104:8–13.] Simply put, the evidence of Plaintiff’s poor job performance is overwhelming, and
Plaintiff cannot show that she was meeting Defendants’ legitimate employment expectations.
See Dickerson v. Bd. of Trustees of Cmty. Coll. Dist. No. 522, 657 F.3d 595, 603 (7th Cir. 2011)
(affirming summary judgment for defendant employer and explaining that plaintiff failed to meet
employer’s expectations where plaintiff was rated unsatisfactory and despite having received
reprimands to improve his work performance, remained an “unsatisfactory employee” after a
follow-up evaluation); Martin v. DeKalb Cty. Cent. United Sch. Dist., 2005 WL 1869085, at *13
24
(N.D. Ind. Aug. 3, 2005) (“It hardly needs explaining that a teacher who is ‘unable to implement
his lessons effectively,’ ‘lacks effective, meaningful communication with parents,’ and is
‘unprofessional and disrespectful toward his coworkers’ was not meeting his employer’s
legitimate expectations).
Plaintiff argues that Defendants applied their legitimate employment expectations in a
disparate manner and that the second and fourth prongs of the McDonnell Douglas test should
thus merge. See Peele v. Country Mut. Ins. Co., 288 F.3d 319, 329 (7th Cir. 2002) (merging the
second and fourth prongs “[w]hen a plaintiff produces evidence sufficient to raise an inference
that an employer applied its legitimate employment expectations in a disparate manner”).
However, Plaintiff fails to provide any evidence to support her assertion that Defendant Lofton
“applied the subjective performance criteria in a disparate manner. See Sallis v. Aurora Health
Care, Inc., 381 F. App’x 591, 592–93 (7th Cir. 2010) (plaintiff’s argument that the second and
fourth prongs of the prima facie case should merge failed because plaintiff did not submit any
evidence to support her assertions that defendant employer was applying its legitimate
employment expectations in a disparate manner, and “her uncorroborated suspicions were
insufficient to stave off summary judgment”). Plaintiff has not identified any similarly situated
employees who were not part of the protected class—that is, employees who were under the age
of forty or employees who were not disabled—who were treated more favorably.
Plaintiff identifies Matthew Chlumsky and Samuel Conway as similarly situated
comparators to whom Defendant Lofton applied the subjective performance criteria in a more
favorable manner.
Plaintiff contends that Chlumsky and Conway are similarly situated to
Plaintiff and both took positions at Senn at the time that Plaintiff was terminated. However,
Plaintiff provides no evidence—and does not even allege—that Chlumsky or Conway
25
demonstrated performance issues in teaching strategy and classroom management similar to
Plaintiff’s performance issues. See Orton-Bell v. Indiana, 759 F.3d 768, 777 (7th Cir. 2014) (“In
general, a plaintiff who believes another individual is similarly situated must at least show that
this ‘comparator’ * * * engaged in similar conduct without such differentiating or mitigating
circumstances as would distinguish [his] conduct or the employer’s treatment of [him].”
(citation and internal quotation marks omitted) (alterations in original)); Weber v. Universities
Research Ass’n, Inc., 621 F.3d 589, 594–95 (7th Cir. 2010) (affirming summary judgment for
defendant employer and explaining that plaintiff failed to show that there were similarly situated
comparators who received favorable treatment, where there was no evidence that alleged
comparators violated employer’s policies to the degree that plaintiff did or that they had trouble
completing their work the way plaintiff did); Peele, 288 F.3d at 330 (“[I]n disciplinary cases—in
which a plaintiff claims that [she] was disciplined by [her] employer more harshly than a
similarly situated employee based on some prohibited reason—a plaintiff must show that [she] is
similarly situated with respect to performance, qualifications, and conduct.”
(citation and
internal quotation marks omitted) (alterations in original)).
In sum, since Plaintiff has not shown that she was meeting her employer’s legitimate
expectations and has not shown that a younger or nondisabled similarly situated comparator
received more favorable treatment, Plaintiff has not established a prima facie case of
discrimination under the ADA or ADEA.
i.
Pretext
Even if Plaintiff had established a prima facie case of discrimination, she fails to offer
evidence to demonstrate a triable issue of fact on whether Defendants’ proffered reason for
terminating Plaintiff from Senn and placing her in the Reassigned Teachers Pool was pretextual.
26
Defendants assert that Plaintiff was terminated from Senn and placed in the Reassigned Teachers
Pool because (1) Plaintiff had been given an unsatisfactory rating for the 2010–2011 school year;
(2) SAA was closing and its teachers were being absorbed into Senn such that there were more
teachers than available positions; and (3) the Board had adopted a policy whereby unsatisfactory
teachers would be laid off or reassigned before other teachers, regardless of seniority. [117, at
18.]
Plaintiff notes that the Human Capital Office identified Plaintiff’s separation from Senn
as the result of a “drop in enrollment” primarily due to the loss of SAA students and argues that
there was no evidence of a drop in enrollment or a drop in projected enrollment between June
2011 and September 2011. However, Plaintiff cites to no admissible evidence to support the
contention that there was no drop in enrollment or to support the allegation that June 2011 and
September 2011 is the correct time period to evaluate. Further, even if there was no drop in
enrollment, it is not the Court’s role to reexamine the Board’s decision to close SAA and absorb
its teachers into Senn. See Kralman v. Illinois Dep’t of Veterans’ Affairs, 23 F.3d 150, 156 (7th
Cir. 1994) (The Court will not “sit as a super-personnel department that reexamines an entity’s
business decisions.” (citation and internal quotation marks omitted)). Thus, Plaintiff has not
shown that there exists a triable issue of fact on whether Defendants’ proffered reason for
terminating Plaintiff was pretextual.5
In Plaintiff’s response to Defendants’ Rule 56.1 Statement of Facts [129, Exhibit 56] and in Plaintiff’s
Statement of Additional Facts [129, Exhibit 55], Plaintiff makes some semblance of an argument that
Board Policy 11-0622-P01, which allowed the Board to lay off teachers who were rated unsatisfactory
before considering seniority in layoffs, did not apply to Plaintiff’ termination due to a “drop in
enrollment.” [See 129, Exhibit 56, at ¶ 57; 129, Exhibit 55, at ¶¶ 15–16.] However, this is not an
appropriate place to make an argument, see Malec, 191 F.R.D. at 585 (“The purpose of the 56.1 statement
is to identify for the Court the evidence supporting a party’s factual assertions in an organized manner[;]
it is not intended as a forum for factual or legal argument.”). Additionally, this argument is not fully
developed, and thus it is waived. See Argyropoulos, 539 F.3d at 738 (concluding that plaintiff’s
5
27
b.
Cumulative Assessment of All Evidence
Next, consistent with Ortiz, the Court will assess cumulatively all of the evidence
presented by Plaintiff without the assistance of the McDonnell Douglas paradigm to evaluate
whether a reasonable factfinder could conclude that Plaintiff was terminated from Senn and
placed in the Reassigned Teachers Pool because of her age and disability. See David, 846 F.3d
at 224; Smart, 2017 WL 449178, at *3. Taking a step back and viewing the evidence as a whole,
in the light most favorable to Plaintiff as the Court must, the Court concludes that Plaintiff has
failed to set forth specific facts showing a genuine issue for trial on her discrimination claims.
First, Plaintiff concedes that there is no evidence in the record that Defendant Lofton
made any statements demonstrating bias against older or disabled employees. [129, at 14.] In
fact, Plaintiff testified in her deposition that she has no reason to believe that Defendant Lofton
discriminated against her based on age, that Defendant Lofton never talked to her about her age,
and that she had “no feelings of what [Defendant Lofton] felt about her age.” [113, Exhibit B,
144:3–16.] Further, when asked “who at the Board do you believe discriminated against you
because of your age?” Plaintiff responded, “[n]obody directly.” [Id., 144:18–21.] Plaintiff also
testified that she did not recall anyone at the Board ever making any comments to her related to
her age or disability. [Id., 150:21–24.]
argument was perfunctory and undeveloped and therefore waived). Further, even if considered, this
argument would fail because even assuming, arguendo, that the Board has misapplied its own policy, this
does not lead to an inference of discrimination. See Krchnavy v. Limagrain Genetics Corp., 294 F.3d
871, 876 (7th Cir. 2002) (“It is insufficient for the employee to show that the employer acted incorrectly
or undesirably by firing him; instead, the employee must show that the employer did not honestly believe
in the reasons it gave for firing him.” (citation and internal quotation marks omitted); Bienkowski v.
American Airlines, 851 F.2d 1503, 1508 (5th Cir. 1988) (“The ADEA cannot protect older employees
from erroneous or even arbitrary personnel decisions, but only from decisions which are unlawfully
motivated.”).
28
Additionally, as discussed above, Plaintiff testified in her deposition that she agreed with
the weaknesses Defendant Lofton identified after her March 15, 2011 observation. [See id. at
¶ 24; id., Exhibit B, 102:23–104:13; 244:6–12.] Further, Plaintiff cannot attempt to support her
claim of disability discrimination by arguing that her hearing impairment—for which she did not
wear hearing aids while at Senn and did not seek an accommodation until August 4, 2011, while
on FMLA leave—caused her not to meet the Board’s legitimate employment expectations, and
thus her disability caused her unsatisfactory rating and ultimate reassignment. See Siefken v.
Vill. of Arlington Heights, 65 F.3d 664, 666 (7th Cir. 1995) (holding that where an employee
knows he has a disability, does not request an accommodation from his employer, and fails to
meet the employer’s expectations “due to his failure to control a controllable disease,” he cannot
state a claim under the ADA).
Plaintiff argues that there is suspicious timing that supports her claim of discrimination.
Plaintiff contends that Defendant Lofton unduly delayed in requesting a Fitness for Duty
Examination for Plaintiff.
Plaintiff argues that since Defendant Lofton issued Plaintiff a
Cautionary Note in January 2011 after A.P. Carey found one of Plaintiff’s students in the
hallway despite an intercom announcement instructing teachers to keep students in the
classroom, Defendant Lofton should not have waited until March 2011 to request a Fitness for
Duty Examination for Plaintiff. However, Plaintiff does not explain how this delay supports her
claim of discrimination. In fact, Defendant Lofton’s decision to observe Plaintiff again on
March 15, 2011, before requesting a Fitness for Duty Examination, supports an inference that
Defendant Lofton exercised leniency with Plaintiff and gave her an opportunity to improve her
performance before deciding that a Fitness for Duty Examination—which Plaintiff resisted—was
necessary.
29
Plaintiff also argues that her claims of discrimination are supported by the fact that
Defendant Lofton advertised an available position in Senn’s math department on March 30,
2011, shortly after giving Plaintiff an unsatisfactory rating on March 21, 2011 and referring her
for a Fitness for Duty Examination. However, Plaintiff does not provide any evidence that this
job posting was for Plaintiff’s position; in fact, Plaintiff admits that SAA math teacher Scott
Wilkerson was reassigned to Plaintiff’s position 119230 when SAA closed. [113, at ¶ 64.]
In sum, based on a cumulative assessment of all of the evidence, viewed in the light most
favorable to Plaintiff as the Court must, no reasonable factfinder could conclude that Defendants
discriminated against Plaintiff because of her age or disability. Therefore, the Court grants
summary judgment in favor of Defendants on Plaintiff’s ADEA claim (Count I) and ADA claim
(Count II).6
Even if the Court were to consider Plaintiff’s inadmissible unsworn, unsigned, undated declaration in
Plaintiff’s Exhibit 3, it would not change this outcome. First of all, as Defendants point out, Plaintiff’s
declaration repeatedly contradicts her deposition testimony. [See 135, at 5.] For example, Plaintiff
represents in paragraph 8 of her declaration that when she started working for the Board of Education of
the City of Chicago, she indicated on her application that she had a hearing impairment. [129, Exhibit 3,
at ¶ 8.] However, Plaintiff testified in her deposition that the first time she informed anyone at the Board
that she had an auditory impairment was when she requested an accommodation in 2011. [113 at ¶ 6;
113, Exhibit B; 112:3–20.] See Bank of Illinois v. Allied Signal Safety Restraint Sys., 75 F.3d 1162, 1168
(7th Cir. 1996) (“[P]arties cannot thwart the purposes of Rule 56 by creating ‘sham’ issues of fact with
affidavits that contradict their prior depositions.”). Plaintiff also asserts in her declaration that Gregory
Norman was Principal of Senn when she started teaching at Senn and that Norman gave her “excellent”
and “superior” ratings the several times he rated her. [129, Exhibit 3, at ¶ 11.] However, this is to no
avail because in evaluating whether Plaintiff was meeting her employer’s legitimate expectations, the
Court must examine Plaintiff’s performance at the time of the challenged adverse actions. Squibb v.
Mem’l Med. Ctr., 497 F.3d 775, 788 (7th Cir. 2007). Additionally, Plaintiff’s declaration attests to
matters outside of her personal knowledge. For example, she states: “Because Vice Principals serve at the
discretion of the Principal, both Carey and Darrough [sic] began unfairly targeting older, disabled, and
minority teachers at Lofton’s discretion in order to avoid angering Lofton.” [129, Exhibit 3, at ¶ 40.]
This violates Rule 56(d), which provides that affidavits must be made on personal knowledge. See
E.E.O.C. v. Admiral Maint. Serv., L.P., 174 F.R.D. 643, 647 (N.D. Ill. 1997) (“[P]ersonal knowledge
“includes inferences—all knowledge is inferential—and therefore opinions. But the inferences and
opinions must be grounded in observation or other first-hand personal experience. They must not be
flights of fancy, speculations, hunches, intuitions, or rumors about matters remote from that experience.”
(internal citation and quotation marks omitted)). Finally, Plaintiff’s declaration is replete with irrelevant
6
30
B.
Rehabilitation Act (Count III)
Next, Plaintiff claims that the Board violated the Rehabilitation Act § 504. The ADA and
the Rehabilitation Act are “nearly identical” and “the Rehabilitation Act is distinguishable only
because it is limited to programs receiving federal financial assistance.” Silk v. City of Chicago,
194 F.3d 788, 798 (7th Cir. 1999). Plaintiff alleges that she requested a bluetooth headset in the
classroom as an accommodation and that Defendants failed to engage in the interactive process
and ignored her request for several months until after she had been terminated from her tenured
position at Senn and placed in the Reassigned Teachers Pool. [33, at 11.]
A plaintiff alleging a failure to accommodate under the Rehabilitation Act must show that
“(1) he is a qualified individual with a disability; (2) the employer was aware of his disability;
and (3) the employer failed to reasonably accommodate the disability.” Ozlowski v. Henderson,
237 F.3d 837, 840 (7th Cir. 2001) (citation and internal quotation marks omitted). The employee
must begin the accommodation process by informing his employer of his disability. Gile v.
United Airlines, Inc., 213 F.3d 365, 373 (7th Cir. 2000). The employer must then “engage with
the employee in an ‘interactive process’ to determine the appropriate accommodation under the
circumstances.” Id. (citation omitted).
Here, Plaintiff did not inform anyone at the Board that she had an auditory impairment
until 2011, when she was on FMLA leave. [113, at ¶ 6.]
On August 4, 2011, Plaintiff asked
the Board to accommodate her with an FM bluetooth streaming device, which she intended to
information, [see, e.g., 129, Exhibit 3, ¶ 41], refers to exhibits not in the record, [see id. at ¶ 44], and
contains blank spaces in lieu of relevant information, [see id. at ¶ 45 (“Although Defendants allege that
they do not maintain records of individuals with disabilities, I am aware of several such individuals who
worked at Senn: Mr. __, Mr. __, Ms. __. Each of these individuals was forced to leave Senn through
harassment and intimidation.”); see also ¶¶ 51, 52]. Thus, even if the Court were to consider Plaintiff’s
inadmissible declaration, Plaintiff has not shown that there is a genuine issue of material fact sufficient to
withstand summary judgment for Defendants on her ADEA and ADA discrimination claims.
31
use in lieu of hearing aids. [Id. at ¶ 51; Id., Exhibit B, 130:1–3.] However, on or about
September 23, 2011, the Board denied this request as ineffective to accommodate Plaintiff’s
disability in the workplace. The Board based this decision on Plaintiff’s audiologist’s opinion
that the bluetooth device would only aid Plaintiff in small group settings or if the students in her
classroom were able to pass a microphone around the room and that the bluetooth device may
not aid Plaintiff in a setting in which many students spoke at once, which is precisely the setting
Plaintiff admitted existed in her classroom. The Board had also received reports from Plaintiff’s
audiologist and Dr. Diadula of MercyWorks indicating that Plaintiff would be capable of
functioning in the classroom with her new hearing aids. Plaintiff wore hearing aids to teach in
the classroom from the time she returned from her leave of absence on September 15, 2011 and
entered the Reassigned Teachers Pool until she retired. Plaintiff does not provide any evidence
that she made another request for an accommodation or that she needed an accommodation once
she was wearing her hearing aids. In fact, Plaintiff asserts that by the time her request for the
bluetooth device was denied, the accommodation was unnecessary. [129, at 26.]
On this record, Plaintiff has not shown that a reasonable factfinder could conclude that
the Board failed to accommodate her by denying her request for the bluetooth device that
Plaintiff’s audiologist opined would not be effective in Plaintiff’s classroom setting. See Gratzl
v. Office of Chief Judges of 12th, 18th, 19th, & 22nd Judicial Circuits, 601 F.3d 674, 681 (7th
Cir. 2010) (“An employer is not obligated to provide an employee the accommodation [s]he
requests or prefers, the employer need only provide some reasonable accommodation.” (citation
and internal quotation marks omitted) (alteration in original)). Additionally, Plaintiff has not
demonstrated that Defendants were responsible for terminating the interactive process. Hoppe v.
Lewis Univ., 692 F.3d 833, 840 (7th Cir. 2012) (“[A]n employee who fails to uphold her end of
32
the bargain—for example, by not clarifying the extent of her medical restrictions—cannot
impose liability on the employer for its failure to provide a reasonable accommodation.” (citation
and internal quotation marks omitted)).
Finally, Defendants are entitled to summary judgment on Plaintiff’s Rehabilitation Act
claim under theories of disparate impact and intentional discrimination for the reasons explained
in Subsection A above. Defendants are also entitled to summary judgment under a failure to hire
theory. To establish a prima facie case of failure to hire, Plaintiff must demonstrate that (1) she
is a member of a protected class, (2) she applied for and was qualified for an open position,
(3) she was rejected for the position, and (4) the position was filled by a person not in the
protected class who had similar or lesser qualifications than Plaintiff. Grigsby v. LaHood, 628
F.3d 354, 358 (7th Cir. 2010). Here, Plaintiff offers no evidence, and does not even allege, that
the positions she applied for were filled by nondisabled individuals with similar or lesser
qualifications than Plaintiff’s.
Therefore, the Court grants summary judgment in favor of
Defendants on Plaintiff’s Rehabilitation Act claim (Count III).
C.
FMLA Interference (Count IV)
Finally, Plaintiff brings a claim of FMLA interference against the Board and Lofton. The
FMLA entitles an employee on FMLA leave the right to return to the same position and benefits
she had just before she took leave.
29 U.S.C. § 2614(a)(1)–(2).
However, this right to
reinstatement is not absolute. The FMLA allows an employer to “refuse to restore an employee
to their former position when restoration would confer a ‘right, benefit, or position of
employment’ that the employee would not have been entitled to if the employee had never left
the workplace.” Kohls v. Beverly Enters. Wis., Inc., 259 F.3d 799, 804 (7th Cir. 2001) (quoting
33
29 U.S.C. § 2614(a)(3)(B); see also Rice v. Sunrise Express, Inc., 209 F.3d 1008, 1017 (7th Cir.
2000).
To establish an FMLA interference claim, the plaintiff must show that: “(1) she was
eligible for the FMLA’s protections; (2) her employer was covered by the FMLA; (3) she was
entitled to take leave under the FMLA; (4) she provided sufficient notice of her intent to take
leave; and (5) her employer denied her FMLA benefits to which she was entitled.” Goelzer v.
Sheboygan County, Wis., 604 F.3d 987, 997 (7th Cir. 2010). Next, the employer may present
evidence that the employee would not have been entitled to her position even if she had not taken
leave. Kohls, 259 F.3d at 804. The employee must then overcome the employer’s assertion and
show that she would have been reinstated if she had not taken FMLA leave. Id. at 804–05.
Here, Plaintiff alleges that Defendants interfered with her exercise of her FMLA rights by
not reinstating her to her tenured teaching position at Senn when she returned from FMLA leave
and instead terminating her from Senn and placing her in the Reassigned Teachers Pool.
However, Defendants have presented ample evidence that Plaintiff would have been terminated
from Senn and placed in the Reassigned Teachers Pool regardless of her FMLA leave. As
discussed above, the record contains robust evidence of Plaintiff’s performance weaknesses, as
Defendant Lofton, A.P. Darroch, and A.P. Carey all noted after multiple observations of
Plaintiff’s classroom. Plaintiff, who admitted that many of the observed weaknesses existed, was
rated “unsatisfactory” for the 2010–2011 school year. When SAA closed and SAA’s teachers
were absorbed into Senn, the Board first laid off teachers who were not properly certified and
then those who were rated unsatisfactory, including Plaintiff, before considering seniority.
To overcome Defendants’ assertion that Plaintiff would have been reassigned regardless
of her FMLA leave, Plaintiff again insists that Defendants’ explanation that teachers were
34
terminated from Senn due to a drop in enrollment is pretextual. This argument fails for several
reasons. First, in the context of an FMLA claim, “pretext may have evidentiary value, but
showing pretext does not necessarily satisfy the employee’s burden [of proving a violation of the
FMLA].” Kohls, 259 F.3d at 806. Additionally, as discussed above, Plaintiff cites no admissible
evidence to support her claim that there was no drop in enrollment. Since Plaintiff has not
offered any evidence linking her reassignment to her FMLA leave, no reasonable factfinder
could find that Plaintiff has met her burden of proving an FMLA interference claim, and
Defendants are entitled to summary judgment on this claim (Count IV). See Simpson v. Office of
Chief Judge of Circuit Court of Will Cty., 559 F.3d 706, 712 (7th Cir. 2009) (affirming summary
judgment for defendants on FMLA interference claim where plaintiff “offers hardly any
evidence linking her termination to her leave-taking”); cf. Goelzer, 604 F.3d 987 at 994–95
(concluding that summary judgment for defendants was not proper where “[a] jury might be
swayed by comments [employer] made that could suggest frustration with [plaintiff’s] use of
FMLA leave”).
D.
State Law Claims
Given the foregoing conclusion that Defendants are entitled to summary judgment on
Plaintiff’s federal claims, the Court must consider whether to exercise its supplemental
jurisdiction over Plaintiff’s remaining state law claims.7 Where a district court has original
jurisdiction over some claims, it has supplemental jurisdiction over other claims that are so
related that they form part of the same case or controversy. 28 U.S.C. § 1367(a); Miller v.
Herman, 600 F.3d 726, 738 (7th Cir. 2010). If the court has dismissed all claims over which it
Plaintiff’s remaining state law claims are: age discrimination in violation of the IHRA against the Board
(Count I); disability discrimination in violation of the IHRA against the Board (Count II); and breach of
contract against the Board (Count VII).
7
35
has original jurisdiction, the court’s supplemental jurisdiction persists, but the court has
discretion to decline to exercise supplemental jurisdiction. 28 U.S.C. § 1367(c)(3); Miller, 600
F.3d at 738 (noting that the decision whether to exercise supplemental jurisdiction is “squarely
within [the district court’s] discretion”). As the Seventh Circuit consistently has stated, “it is the
well-established law of this circuit that the usual practice is to dismiss without prejudice state
supplemental claims whenever all federal claims have been dismissed prior to trial.” Groce v.
Eli Lilly & Co., 193 F.3d 496, 501 (7th Cir. 1999); see also Wright v. Associated Ins. Co., Inc.,
29 F.3d 1244, 1251 (7th Cir. 1994) (“When all federal claims have been dismissed prior to trial,
the principle of comity encourages federal courts to relinquish supplemental jurisdiction[.]”);
Patrick v. City of Chicago, 662 F. Supp. 2d 1039, 1068 (N.D. Ill. 2009) (granting summary
judgment in favor of defendants on federal claims and declining to exercise supplemental
jurisdiction over state law claims). Exceptions to this general rule exist:
(1) when the statute of limitations has run on the pendent claim, precluding the
filing of a separate suit in state court; (2) substantial judicial resources have
already been committed, so that sending the case to another court will cause a
substantial duplication of effort; or (3) when it is absolutely clear how the pendent
claims can be decided.
Davis v. Cook Cty., 534 F.3d 650, 654 (7th Cir. 2008) (citation and internal quotation marks
omitted).
Here, none of the exceptions applies. First, Illinois has adopted a “rule of tolling,” which
provides that if an action “is dismissed by a United States District Court for lack of jurisdiction,
* * * then, whether or not the time limitation for bringing such action expires during the
pendency of such action, the plaintiff * * * may commence a new action [in state court] within
one year or within the remaining period of limitation, whichever is greater, after
* * * the
action is dismissed by a United States District Court for lack of jurisdiction.” 735 ILCS 5/1336
217; see also Davis, 534 F.3d at 654; White v. City of Chicago, 149 F. Supp. 3d 974, 983–84
(N.D. Ill. 2016). Second, this Court has not yet committed “substantial judicial resources” to
considering the merits of Plaintiff’s state law claims. See Davis, 534 F.3d at 654 (“the district
court disposed of the federal claims on summary judgment, and so ‘substantial judicial
resources’ have not yet been committed to the case”). Third, it is not clearly apparent how the
state law claims would be decided. In these circumstances, the usual rule applies and dictates
dismissal without prejudice of Plaintiff’s state law claims in Count I, II, and VII.
IV.
Conclusion
For the reasons stated above, the Court grants Defendant’s motion for summary
judgment [111] and denies Plaintiff’s cross-motion for summary judgment [129] as to Plaintiff’s
federal claims in Count I (ADEA discrimination), Count II (ADA discrimination), Count III
(Rehabilitation Act violation), and Count IV (FMLA interference). Plaintiff’s remaining state
law claims in Counts I, II and VII are dismissed without prejudice. The Court will enter a final
judgment and close the case.
Dated: March 17, 2017
________________________________
Robert M. Dow, Jr.
United States District Judge
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