Sorescu v. Harper

Filing 105

MEMORANDUM and Order Signed by the Honorable Marvin E. Aspen on 5/10/2017: Defendant's motion for summary judgment 50 is granted. Judgment entered in favor of defendant and against plaintiff. Status hearing of May 11, 2017 is stricken. Civil case terminated.Mailed notice(mad, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
VALENTINA SORESCU,

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Plaintiff,
v.
TRISTA HARPER,
Defendant.

No. 1:15 C 10317
Hon. Marvin E. Aspen

MEMORANDUM AND ORDER
MARVIN E. ASPEN, District Judge:
Plaintiff Valentina Sorescu, a Chicago Public Schools (“CPS”) teacher, filed this action
pursuant to 42 U.S.C § 1983 against Defendant Trista Harper, the principal at the CPS high
school where Sorescu worked. Plaintiff claims Defendant retaliated against her for engaging in
speech protected under the First and Fourteenth Amendments when she provided information to
a reporter and to investigators regarding alleged student attendance data manipulation by school
administrators. Presently before us is Defendant’s motion for summary judgment. For the
reasons set forth below, we grant Defendant’s motion.
BACKGROUND
Unless otherwise stated, the facts described herein are undisputed and culled from the
parties’ Local Rule 56.1 submissions. Plaintiff is a teacher employed by the Board of Education
of the City of Chicago (“Board”). (Def.’s L.R. 56.1(a)(3) Stmt. (“Def.’s SOF”)
(Dkt. No. 51) ¶ 1.) For approximately 15 years, she taught at Manley Career Academy High
School (“Manley”) until she was laid off effective October 5, 2015. (Id.) Plaintiff was classified
as a math teacher, and she also possessed the required certification to teach computer science

courses. (Id.) As a CPS teacher, Plaintiff was a member of the Chicago Teachers Union
Local 1 (“CTU”) and was subject to the terms of the collective bargaining agreement between
the Board and CTU (“CBA”). (Id.) The CBA governed various aspects of its members’
employment relationship, including the order of layoffs for teachers and the teacher evaluation
process. (Id.)
Plaintiff was also a member of Manley’s Professional Problems Committee (“PPC”) from
March 2015 until she was laid off on October 5, 2015. (Id. ¶ 14.) Each CPS school’s PPC is
comprised of the principal, support personnel, and teachers. (Id. ¶ 13.) The PPC discusses
school operations and contract administration, among other issues. (Id.) Through her position
on Manley’s PPC, Plaintiff contends she learned Manley administrators were improperly
manipulating student attendance data. (Id. ¶ 18.) All CPS teachers are required to accurately
take and maintain student attendance records. (Id. ¶ 10.) The parties agree that keeping accurate
attendance records is vital for CPS schools, because state law provides that aid to public schools
depends in part on student enrollment, which is tracked through daily attendance records.
(Id. ¶ 11.)
In June 2015, Plaintiff and two fellow Manley teachers met with Kate Grossman, a news
reporter, in order to share their allegations of attendance record fraud at Manley. (Id. ¶ 17.)
Plaintiff provided Grossman with documents, including student attendance data, and she and
Grossman spoke multiple times by phone and email following their initial meeting. (Id.) On
July 6, 2015, The Atlantic published Grossman’s article, “What Schools Will Do to Keep
Students on Track.” (Id. ¶ 19.) Citing attendance records provided by three teachers, the article
claimed administrators at Manley frequently changed absences marked by teachers as
“unexcused” to “school function” in order to boost attendance data for the school. (Id.) As

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sources, the article identified Marilyn Parker and two additional teachers (one of which was
Plaintiff) who had requested anonymity. (Id.) The article also stated that the Board’s Office of
Inspector General (“OIG”) was investigating Manley as a result of the alleged attendance data
manipulation. (Id.)
Defendant was hired as interim principal at Manley in July 2014 and has served as a
contracted principal at Manley since May 2015. (Id. ¶ 2.) She learned about the article the day it
was published, but at that time, she did not know the identity of the two teachers who had
requested anonymity. (Id. ¶¶ 20–21.) Defendant claims she first learned that Plaintiff was one
of Grossman’s sources when Grossman told her so on a call shortly after Plaintiff was laid off.
(Id. ¶ 21.) Defendant further contends that she never spoke with Plaintiff about the Grossman
article, nor did she discuss any of the issues raised in it, including the alleged attendance data
manipulation, with Plaintiff prior to its publication. (Id. ¶ 22.)
After the Grossman article was published, OIG approached Plaintiff and requested to
interview her regarding attendance issues. (Id. ¶¶ 25–26.) OIG is tasked with “the authority to
conduct investigations into allegations of or incidents of waste, fraud, and financial
mismanagement in public education within the jurisdiction of the board by a local school council
member or an employee, contractor, or member of the board or involving school projects
managed or handled by the Public Building Commission.” (Id. ¶ 23
(citing 105 ILCS 5/34–13.1).) Pursuant to the Board’s rules and Illinois state law, all CPS
teachers are required to cooperate in OIG investigations. (Id. ¶ 24.) Consistent with these rules,
Plaintiff met with OIG investigators to discuss the attendance manipulation allegations on
July 17, 2015. (Id.) At their request, Plaintiff met with the OIG investigators again on
September 17, 2015. (Id. ¶ 28.)

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Plaintiff alleges that following her reports to Grossman and OIG, Defendant took
retaliatory measures against her. First, Plaintiff alleges that on July 23, 2015, she was asked to
fill out a new request form to access a CPS computer system called Oracle. (Id. ¶¶ 29–31.)
Plaintiff was technology coordinator at Manley, and she was one of a select few CPS teachers
with access to Oracle, which is used for several purposes, including inventory recordkeeping.
(Id.) Defendant contends that Plaintiff needed to complete a new access form because “there
was an issue with the inventory recordkeeping” Plaintiff performed and she wanted Plaintiff “to
make sure she had all necessary access to the Oracle system so that the inventory recordkeeping
issue could be resolved.” (Id. ¶ 31.) Although Plaintiff confirmed that her Oracle access was
ultimately “fine,” and she never lost access, Plaintiff argues the incident nevertheless is evidence
that Defendant was attempting to interfere with her access in retaliation for her reports of
attendance fraud as it followed on the heels of her statements to Grossman and OIG.
(Pl.’s Rule 56.1(b)(3)(B) Resp. (Dkt. No. 82) ¶¶ 32–34.)
Second, in August 2015, despite Plaintiff’s stated preference to teach geometry,
Algebra I and II, and advanced placement statistics, Defendant instead assigned her to teach
three computer science courses and two geometry classes. (Id. ¶¶ 40–42.) Manley was
participating in a new CPS computer science initiative called CS4All, which Defendant hoped to
turn into a three-year career technical education (“CTE”) program. (Id.) Defendant contends
that the three-year CTE program required a state-certified computer science teacher to teach the
second and third year curriculum, and Plaintiff was the only teacher at Manley possessing the
necessary certification. (Id. ¶ 41; Suppl. Harper Decl. (Dkt. No. 102–2) ¶¶ 6–12.) Defendant
also intended for Plaintiff to teach an advanced placement statistics course, but Manley did not
ultimately offer the course during the fall 2015 semester. (Def.’s SOF ¶ 43.) Plaintiff asserts

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that while she experienced no pay cut as a result of being assigned to teach computer science, she
understood the reassignment to put her at a greater risk for a reduction in force because computer
science courses are electives. (Pl.’s Rule 56.1(b)(3)(B) Resp. ¶ 42.)
Third, Plaintiff contends Defendant interfered with her access to Gradebook, CPS’s
computer attendance-tracking program. (Def.’s SOF ¶ 35.) Plaintiff claims she was unable to
access Gradebook twice in the fall of 2015, including the first day of school, September 8, 2015
and again on September 15, 2016. (Id. ¶¶ 36–39.) Plaintiff complained to Defendant about her
Gradebook access issues and they were resolved both times within 24 hours. (Id.) While
Plaintiff concedes that she does not know if her inability access Gradebook was intentionally
caused by Defendant, Plaintiff claims that the denial is further evidence of retaliation,
particularly since it prevented her from viewing or reporting on any allegedly fraudulent
attendance changes. (Pl.’s Rule 56.1(b)(3)(B) Resp. ¶¶ 36–39.)
Finally, Plaintiff claims Defendant chose her position for closure and ultimately laid her
off in retaliation for her reports to Grossman and OIG. It is undisputed that a significant
decrease in enrollment at Manley for the 2015–2016 school year resulted in a $556,000 budget
deficit and necessitated teacher layoffs. (Id. ¶¶ 48–49, 51.) Harper learned 10 days into the fall
semester that only 60 freshman had enrolled, contrary to expectations that Manley would
have 235 incoming freshman. (Id. ¶ 48.) Based on a CPS report Defendant received on
September 25, 2015, she determined four to five teacher positions would need to be cut by
September 29, 2015 to balance the budget. 1 (Id. ¶ 50.) When teaching positions must be closed

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Plaintiff denies this fact “to the extent that it suggests that Harper had not considered cutting
positions until September 25, 2015,” but because she provides no citations to the record or
evidence for this conclusory response, we do not consider it. Keeton v. Morningstar, Inc.,
667 F.3d 877, 880 (7th Cir. 2012).

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for budgetary reasons, CPS principals must assess student needs and identify the positions to
close, subject to approval from the human resources department, which ensures the CBA
provisions are complied with. (Id. ¶ 55; Taylor Decl. (Dkt. No. 102–4) ¶¶ 3–6.)
Defendant contends she analyzed which departments were overstaffed in light of the
reduced enrollment, assessed student needs, consulted the master class schedule, discussed with
Assistant Principal Melinda Jean-Baptiste, 2 and determined that four regular (not special
education) teacher positions could be closed, including two English, one math, and one CTE
position. (Id. ¶ 56.) In determining which positions to close, Defendant’s recommendations
were subject to final approval from Human Resources and compliance with with Appendix H of
the CBA, which governs teacher layoffs. (Id. ¶ 57–58; see also Taylor Decl.
(Dkt. No. 102–4) ¶¶ 3–7.) Appendix H sets forth the order of layoffs within a unit based on
teachers’ certifications, evaluation ratings, tenure status, and seniority. (Def.’s SOF ¶ 57.)
Defendant identified Plaintiff’s position as the math position to be closed. (Id. ¶ 58.) At
the time, Manley only employed four certified math teachers: Plaintiff and three others.
(Id. ¶ 59.) Defendant contends she selected Plaintiff’s math position for closure because it was
her only choice under the circumstances and the governing CBA. Defendant asserts that two of
the math teachers were needed to teach other required classes, and therefore, they could not be
laid off. (Id. ¶ 61–62.) And while both Plaintiff and the remaining math teacher were tenured,
that teacher had a higher evaluation rating, and pursuant to the CBA, tenured teachers with lower
ratings must be laid off before tenured teachers with higher ratings. (Id. ¶ 63.)

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Plaintiff denies that Defendant consulted with Jean-Baptiste, but the evidence she cites does not
support her assertion. (See Pl.’s Rule 56.1(b)(3)(B) Resp. ¶ 56.)

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Plaintiff also asserts that Defendant excluded her from a local school council (“LCS”)
meeting in retaliation for her speech. The LCS meeting was scheduled for September 30, 2015
in the wake of the budget crisis. (Id. ¶¶ 52–53.) While LCS meetings were generally open, at
times the Manley LCS held closed meetings. (Id.) The parties dispute whether the
September 30, 2015 meeting was labeled as “closed” or “special,” and they do not agree on the
significance of the wording: Plaintiff contends the meeting was labeled a “special” LCS session
to discuss the 2015–2016 budget, but that it was not designated as “closed” as such meetings had
been labeled in the past. (Pl.’s Rule 56.1(b)(3)(B) Resp. ¶¶ 52–53.) In any case, the meeting
was closed to the public and only LCS members were allowed to attend. (Def.’s SOF ¶ 54.)
Shortly thereafter, Defendant emailed her final recommendations for position closures to
Jerry Taylor, a CPS Human Resources Specialist, on October 2, 2015. (Id. ¶ 65.) After Taylor
confirmed the recommendations complied with Board policy and the CBA, Plaintiff’s position
was closed and she was laid off effective October 5, 2015. (Id. ¶ 66.) Plaintiff was ultimately
rehired by CPS as a computer science teacher at Lake View High School in 2016. (Id. ¶¶ 1, 67.)
Plaintiff filed her complaint in federal court on November 13, 2015 alleging Defendant
violated 42 U.S.C. § 1983 by taking actions against her in retaliation for exercising her rights
under the First and Fourteenth Amendments. (Compl. ¶¶ 29, 31–32, 36.) Specifically, Plaintiff
alleges Defendant retaliated against her by (1) assigning Plaintiff to teach computer science
classes during the 2015–2016 school year and canceling her advanced placement statistics
course; (2) closing Plaintiff’s math position and causing her to be laid off effective
October 5, 2015; (3) requesting that Plaintiff prepare a new request form for access to the Oracle
system; (4) interfering with Plaintiff’s ability to access Gradebook on two occasions during

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fall 2015; and (5) barring Plaintiff from attending the LCS meeting on September 30, 2015.
(Compl. ¶¶ 18, 21, 31–32.)
LEGAL STANDARD
Summary judgment is appropriate where “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). The movant bears the initial burden of “informing the district court of the
basis for its motion, and identifying those portions of the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, which it believes
demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett,
477 U.S. 317, 323, 106 S. Ct. 2548, 2553 (1986) (internal quotations omitted). In responding to
a summary judgment motion, the nonmoving party may not simply rest upon the allegations
contained in the pleadings but must present specific facts to show that a genuine issue of material
fact exists. Fed. R. Civ. P. 56(e)(2). A genuine issue for trial exists when “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, 106 S. Ct. 2505, 2510 (1986). We view the record in the light
most favorable to the non-moving party, and draw all reasonable inferences in that party’s favor.
Id. at 255, 106 S. Ct. at 2513; Zerante v. DeLuca, 555 F.3d 582, 584 (7th Cir. 2009). “However,
inferences that are supported by only speculation or conjecture will not defeat a summary
judgment motion.” Dorsey v. Morgan Stanley, 507 F.3d 624, 627 (7th Cir. 2007) (citation and
quotation marks omitted). Additionally, “[a] party who bears the burden of proof on a particular
issue may not rest on its pleadings, but must affirmatively demonstrate, by specific factual
allegations, that there is a genuine issue of material fact that requires trial.”
Hemsworth v. Quotesmith.com, Inc., 476 F.3d 487, 489–90 (7th Cir. 2007) (citation omitted).

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ANALYSIS
“The First Amendment, applicable to the states through the Fourteenth Amendment,
prohibits a public employer from retaliating against an employee for engaging in protected
speech.” Milwaukee Deputy Sheriff’s Ass’n v. Clarke, 574 F.3d 370, 376 (7th Cir. 2009). “To
establish a claim for retaliation in violation of the First Amendment, a public employee must
prove that: (1) his speech was constitutionally protected, (2) he has suffered a deprivation likely
to deter speech, and (3) his speech was at least a motivating factor in the employer’s action.”
Swetlik v. Crawford, 738 F.3d 818, 825 (7th Cir. 2013) (citing Peele v. Burch, 722 F.3d 956, 959
(7th Cir. 2013)). “If a plaintiff establishes a prima facie case, the burden shifts to the employer
to demonstrate that it would have taken the same action in the absence of the protected speech.”
Valentino v. Vill. of S. Chi. Heights, 575 F.3d 664, 670 (7th Cir. 2009). “If the employer carries
this burden, the plaintiff may still reach trial by producing sufficient evidence to allow a
reasonable fact finder to determine that the employer’s reasons were merely a pretext for firing
the employee, at least in part, for exercising her First Amendment rights.” Id.
I.

CONSTITUTIONALLY PROTECTED SPEECH
The determination of whether speech is constitutionally protected is a question of law.

Connick v. Meyers, 461 U.S. 138, 147–48, n.7 (1983); Kubiak v. City of Chi., 810 F.3d 476, 481
(7th Cir. 2016); Houskins v. Sheahan, 549 F.3d 480, 489 (7th Cir. 2008). To receive First
Amendment protection, a public employee must speak “as a citizen on a matter of public
concern.” Garcetti v. Ceballos, 547 U.S. 410, 418, 126 S. Ct. 1951, 1958 (2006);
Clarke, 574 F.3d at 377. In addition, the employee’s interest in expressing that speech must not
be “outweighed by the state’s interests as an employer in “promoting effective and efficient
public service.’” Swetlik, 738 F.3d at 825 (quoting Houskins, 549 F.3d at 490). Thus, we must
engage in a balancing test to determine “the interests of the teacher, as a citizen, in commenting
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upon matters of public concern and the interest of the State, as an employer, in promoting the
efficiency of the public services it performs through its employees.” Pickering v. Bd. of Ed. of
Twp. High Sch. Dist. 205, Will Cnty., Ill., 391 U.S. 563, 568, 88 S. Ct. 1731, 1734–35 (1968).
A.

Private Citizen

Defendant first argues that Plaintiff’s statements are not entitled to the protection of the
First Amendment because she did not speak as a private citizen. “[W]hen public employees
make statements pursuant to their official duties, the employees are not speaking as citizens for
First Amendment purposes, and the Constitution does not insulate their communications from
employer discipline.” Garcetti, 547 U.S. at 421, 126 S. Ct. at 1960; accord. Spiegla v. Hull,
481 F.3d 961, 965 (7th Cir. 2007) (“Garcetti made clear that public employees speaking
‘pursuant to their official duties’ are speaking as employees, not citizens, and thus are not
protected by the First Amendment regardless of the content of their speech.”). However, speech
“does not lose protection simply because it ‘concerns’ or is ‘acquired by virtue of [the citizen’s]
public employment.’” Kristofek v. Vill. of Orland Hills, 832 F.3d 785, 793 (7th Cir. 2016)
(quoting Lane v. Franks, ––– U.S. –––, 134 S. Ct. 2369, 2379 (2014)). “The critical question
under Garcetti is whether the speech at issue is itself ordinarily within the scope of an
employee’s duties, not whether it merely concerns those duties.” Lane, 134 S. Ct. at 2379;
see also Houskins, 549 F.3d at 490 (“Determining the official duties of a public employee
requires a practical inquiry into what duties the employee is expected to perform, and is not
limited to the formal job description.” (citation omitted)); Kristofek, 832 F.3d at 793 (“For the
speech to lack constitutional protection, it must constitute government employees’ work product
that has been commissioned or created by the employer.” (internal quotations omitted)).
Defendant argues Plaintiff admitted that she learned about the alleged attendance fraud in
her capacity as a PPC member, and in that role, she was responsible for reporting improper
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manipulation of attendance data to both OIG and the press. (Def.’s Mem. at 8.) Therefore,
Defendant argues, she was acting pursuant to her duties as a public employee, not speaking as a
private citizen, and her reports are not constitutionally protected as a result. (Id.)
There is no dispute that the alleged attendance issues came to Plaintiff’s attention in her
role as a member of the Manley PPC. (Def.’s SOF ¶ 18.) However, Plaintiff’s responsibilities in
reporting to OIG versus to Grossman diverge. With respect to her reports to OIG, it is
undisputed that OIG contacted Plaintiff to interview her regarding attendance issues, and
Plaintiff was required to cooperate with OIG investigations pursuant to Board rules and state
law. (Id. ¶¶ 24–25.) Moreover, the parties do not dispute that CPS teachers’ job duties required
accurate recording of student attendance during each class. (Id. ¶¶ 10–11.) Plaintiff also
conceded that as part of her job duties, she is expected to report other CPS employees when she
observes them violating the law. (Id. ¶ 26.) Indeed, Plaintiff does not appear to contest
Defendant’s argument that her reports to OIG were not protected by the First Amendment.
(See Pl.’s Resp. at 4–6.) Accordingly, insofar as Plaintiff claims she was retaliated against for
her comments to OIG, her claim must fail, as such speech was made pursuant to her duties as a
public employee, and it is therefore not entitled to First Amendment protection. Garcetti,
547 U.S. at 421, 126 S. Ct. at 1960; Spiegla, 481 F.3d at 965.
However, Plaintiff also contends she was retaliated against on account of her statements
to Grossman. Construed favorably to Plaintiff, these statements were made in her capacity as a
private citizen, not pursuant to her official duties as a teacher or a Manley PPC member. See
Morales v. Jones, 494 F.3d 590, 598 (7th Cir. 2007) (recognizing that pursuant to Garcetti, the
same speech said to a different individual may be entitled to protection). It is a “settled principle
that if a public employee reports official misconduct in the manner directed by official policy, to

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a supervisor, or to an external body with formal oversight responsibility, then the employee
speaks pursuant to her official duties and her speech is unprotected by the First Amendment.”
Spalding v. City of Chi., 186 F. Supp. 3d 884, 904–05 (N.D. Ill. 2016) (collecting cases). “By
contrast, if an employee . . . reports misconduct outside established channels or in violation of
official policy, she speaks as a private citizen and her speech is constitutionally protected.” Id.
Defendant relies on the deposition of CTU Field Representative Glen Kugler, who
testified that it was his understanding that Plaintiff and the other teachers obtained information
about attendance fraud from the Manley PPC. (Def.’s SOF ¶ 18.) But the fact that Plaintiff
learned of alleged attendance irregularities through her PPC position does not alone strip her
reports to Grossman of First Amendment protection. Kristofek, 832 F.3d at 793 (finding the fact
that a public employee’s statements “bore some relation to the subject matter of his job is not
dispositive”). “[S]peech by public employees on subject matter related to their employment
holds special value precisely because those employees gain knowledge of matters of public
concern through their employment.” Lane, 134 S. Ct. at 2379; accord. Pickering,
391 U.S. at 572, 88 S. Ct. at 1736 (observing that “[t]eachers are . . . the members of a
community most likely to have informed and definite opinions as to how funds allotted to the
operation of the schools should be spent” and “it is essential that they be able to speak out freely
on such questions without fear of retaliatory dismissal”). Moreover, Plaintiff disputes
Defendant’s evidence that the teachers met with Grossman pursuant to any duty as PPC
members—rather, she claims her responsibilities as a PPC member only required her to report
issues internally. (Sorescu Aff. ¶ 2.) The fact that Plaintiff spoke to Grossman on condition of
anonymity and was not identified as a PPC member in the article further supports a conclusion
that Plaintiff was not speaking pursuant to any official duties. Thus, to the extent that Plaintiff’s

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retaliation claim is based on her statements to Grossman, she was speaking as a citizen for First
Amendment purposes. Garcetti, 547 U.S. at 421, 126 S. Ct. at 1960.
B.

Matter of Public Concern

To be protected, speech also must involve a matter of public concern. Kristofek,
832 F.3d at 794 (citing City of San Diego, Cal. v. Roe, 543 U.S. 77, 83, 125 S. Ct. 521, 525–26
(2004)). “Whether an employee’s speech addresses a matter of public concern must be
determined by the content, form, and context of a given statement, as revealed by the whole
record.” Connick, 461 U.S. at 147–48, 103 S. Ct. at 1690. “[P]ublic employees are often the
members of the community who are likely to have informed opinions as to the operations of their
public employers. . . . Were they not able to speak on these matters, the community would be
deprived of informed opinions on important public issues.” Roe, 543 U.S. at 82,
125 S. Ct. at 525. Here, there is no dispute that Plaintiff’s speech to Grossman concerned a
matter of public concern. See, e.g., Thompson v. Bd. of Educ. of the City of Chi.,
711 F. Supp. 394, 402 (N.D. Ill. 1989) (citing evidence establishing the “quality of education and
conditions in the Chicago public schools constitute matters of vital public concern”).
C.

Pickering Balancing Test

Notwithstanding that Plaintiff’s reports to Grossman were made as a citizen on a matter
of public concern, for her speech to be protected under Pickering, “the employee’s interest in
making the speech must outweigh the employer’s interest in ‘promoting the efficiency of the
public services it performs through its employees.’” Swetlik, 738 F.3d at 827 (quoting
Hernandez v. Cook Cnty. Sheriff’s Office, 634 F.3d 906, 914 (7th Cir. 2011)); Pickering,
391 U.S. at 568, 88 S. Ct. at 1734–35. “If not, the employer’s action is considered to be justified
and does not violate the First Amendment.” Id. “The question becomes whether the relevant
government entity had an adequate justification for treating the employee differently from any
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other member of the general public.” Garcetti, 547 U.S. at 418, 126 S. Ct. at 1958. For
example, where a public employee’s statements were false or made with knowing or reckless
disregard for the truth, they may not be entitled to First Amendment protection under the
Pickering balancing test. Swetlik, 738 F.3d at 827.
The Seventh Circuit has identified certain additional factors that should be considered
when determining whether the government’s interest outweighs the First Amendment interests of
a public employee, including (1) whether the speech would create problems in maintaining
discipline or harmony among coworkers; (2) whether the employment relationship is one in
which personal loyalty and confidence are necessary; (3) whether the speech impeded the
employee’s ability to perform her responsibilities; (4) the time, place, and manner of the speech;
(5) the context within which the underlying dispute arose; (6) whether the matter was one on
which debate was vital to informed decisionmaking; and (7) whether the speaker should be
regarded as a member of the general public. Graber v. Clarke, 763 F.3d 888, 896 (7th Cir. 2014)
(quoting Gustafson v. Jones, 290 F.3d 895, 909 (7th Cir. 2002)). In balancing the employee’s
protected speech against the government’s interests, it is unnecessary to address each factor. Id.
Defendant argues that Plaintiff has not shown that her interests as a citizen in
commenting upon matters of public concern outweighs the Board’s interest in promoting the
efficiency of the public services it performs through its employees. (Def.’s Mem. at 9.)
Defendant argues Plaintiff “went behind Harper’s back to the press and accused her of
improperly manipulating student attendance data to make Manley look better,” which created the
“potential for disharmony in the workplace.” (Id.) While the parties agree that in “an ideal
world,” CPS principals and teachers are supposed to look out for one another to avoid potential
conflicts that could adversely affect students, they disagree as to whether and to what extent

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Plaintiff’s reports caused any conflict and whether it was justified. (See, e.g., Def.’s SOF ¶¶ 8–9;
Pl.’s Rule 56.1(b)(3)(B) Resp. ¶¶ 8–9.)
Plaintiff’s interest in making her statements to Grossman, although “critical of [her] . . .
employer but which are neither shown nor can be presumed to have in any way either impeded
the teacher’s proper performance of [her] daily duties in the classroom or to have interfered with
the regular operation of the schools generally,” tend to outweigh Defendant’s interest in limiting
her speech. Pickering, 391 U.S. at 572–73, 88 S. Ct. at 1737 (further finding “absent proof of
false statements knowingly or recklessly made by him, a teacher’s exercise of his right to speak
on issues of public importance may not furnish the basis for his dismissal from public
employment”). In addition, the time, place, and manner of Plaintiff’s speech was generally
appropriate as Plaintiff disclosed information to Grossman during the summer recess and without
interfering with the school’s operations. Likewise, as discussed, Plaintiff’s speech touched on a
matter of public concern. Considering all of the Pickering factors, we cannot conclude as a
matter of law that Plaintiff’s interest in speaking with Grossman was outweighed by Defendant’s
interests as an employer in “promoting effective and efficient public service.” Pickering,
391 U.S. at 568, 88 S. Ct. at 1734–35; Swetlik, 738 F.3d at 827.
II.

CAUSAL CONNECTION
However, even if constitutionally protected, Plaintiff has not shown her speech to

Grossman was a motivating factor causing her layoff or the other allegedly retaliatory acts she
complains of. To establish a prima facie case, a public employee must prove that the
constitutionally-protected speech was a motivating factor for the retaliation.
Peele, 722 F.3d at 960 (“The plaintiff has the initial burden to produce evidence that his speech
was at least a motivating factor in the employer’s decision to take adverse action against him—
or, in philosophical terms, a sufficient condition of the retaliation.” (internal quotations
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omitted)); Vose v. Kliment, 506 F.3d 565, 569 (7th Cir. 2007) (citing Mt. Healthy City Sch. Dist.
Bd. of Educ. v. Doyle, 429 U.S. 274, 287, 97 S. Ct. 568, 576 (1977)). “The defendant may then
rebut that evidence by demonstrating that ‘the harm would have occurred anyway,’ even without
the protected conduct—or, in other words, ‘that his conduct was not a necessary condition of the
harm.’” Peele, 722 F.3d at 960 (quoting Greene v. Doruff, 660 F.3d 975, 980 (7th Cir. 2011)
(emphasis in original)). Plaintiff must produce “specific, nonconclusory allegations reasonably
linking her speech to employer discipline,” and she must do more than show that the defendant
was displeased by her speech. Wright v. Illinois Dep’t of Children & Family Servs.,
40 F.3d 1492, 1500–01 (7th Cir. 1994) (internal quotations omitted).
Plaintiff cannot sustain her claim, because Defendant has presented uncontroverted
evidence that she did not learn that Plaintiff was one of the anonymous sources for the Grossman
article until after Plaintiff was already laid off. (Def.’s SOF ¶ 21.) During a call several days
after Plaintiff’s layoff, Grossman told Defendant for the first time that Plaintiff was one of the
unnamed teachers cited in The Atlantic article. (See Harper Decl. (Dkt. No. 53–2) ¶ 18;
Harper Dep. (Dkt. No. 53–3) at 42–43). Plaintiff never otherwise told Defendant that she was
one of Grossman’s sources. (Harper Decl. ¶ 20.) While Plaintiff claims that Jean-Baptiste may
have told Defendant that Plaintiff was “likely an anonymous teacher,” Plaintiff has failed to

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support this allegation with any evidence in the record. 3 As there is no genuine dispute of
material fact that Defendant did not learn that Plaintiff was a source for the Grossman article
until after she was already laid off, her speech could not have been a motivating factor for her
layoff or for any of the other allegedly retaliatory actions that preceded it, including her denial of
access to Oracle and Gradebook, her course reassignment, or her exclusion from the LCS
meeting. Because Plaintiff has failed to marshal evidence to establish this essential element of
her prima facie case, we must grant Defendant’s motion for summary judgment.
CONCLUSION
For the foregoing reasons, we grant Defendant’s motion for summary judgment.
(Dkt. No. 50.) It is so ordered.

____________________________________
Honorable Marvin E. Aspen
United States District Judge
Dated: May 10, 2017
Chicago, Illinois
3

Plaintiff’s response brief, response to Defendant’s Statement of Facts, and her own Statement
of Additional Facts all repeatedly cite pages of the Jean-Baptiste deposition that appear nowhere
in the record. (Pl.’s Resp. Br. at 9; Pl.’s Rule 56.1(b)(3)(B) Resp. ¶ 21;
Pl.’s Rule 56.1(b)(3)(C) SOAF (Dkt. No. 84) ¶ 16.) We only rely on a party’s facts to the extent
that they are supported by evidence in the record. Keeton, 667 F.3d at 880. Moreover, we are
entitled to strictly enforce compliance with Local Rule 56.1. See Stevo v. Frasor,
662 F.3d 880, 886–87 (7th Cir. 2011) (“Because of the high volume of summary judgment
motions and the benefits of clear presentation of relevant evidence and law, we have repeatedly
held that district judges are entitled to insist on strict compliance with local rules designed to
promote the clarity of summary judgment filings.”); Patterson v. Ind. Newspapers, Inc.,
589 F.3d 357, 360 (7th Cir. 2009) (“We have repeatedly held that the district court is within its
discretion to strictly enforce compliance with its local rules regarding summary-judgment
motions.”); Malec v. Sanford, 191 F.R.D. 581, 583 (N.D. Ill. 2000) (district courts have broad
discretion to strictly enforce Local Rule 56.1); Banks v. Fuentes, No. 07 C 784,
2012 WL 6184880, at *2 (N.D. Ill. Dec. 11, 2012) (“Whether they seek or oppose summary
judgment, parties have a right to expect that Local Rule 56.1 will be enforced and that facts not
properly presented under the rule will be disregarded.”).
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