Morris v. The Catholic Bishop of Chicago
Filing
74
MEMORANDUM Opinion and Order written by the Honorable Gary Feinerman on 5/4/2018.Mailed notice.(jlj, )
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
CAROLEANN MORRIS,
Plaintiff,
vs.
THE CATHOLIC BISHOP OF CHICAGO,
Defendant.
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16 C 7916
Judge Gary Feinerman
MEMORANDUM OPINION AND ORDER
Caroleann Morris brought this suit against the Catholic Bishop of Chicago under the Age
Discrimination in Employment Act, 29 U.S.C. § 621 et seq., alleging that she was dismissed
from her position as a parochial school teacher because of her age. Doc. 1. The Bishop has
moved for summary judgment. Doc. 36. The motion is granted.
Background
Before setting forth the facts, the court addresses the evidentiary and Local Rule 56.1
issues that the parties raise in three motions. Docs. 48, 52, 67.
First, Morris moves to strike as irrelevant two paragraphs from the Bishop’s Rule
56.1(a)(3) statement. Doc. 48 at 1-3. The paragraphs assert facts regarding the ages of the
elementary school teachers at Morris’s school, Most Blessed Trinity Academy (“MBTA”), as of
April 2016. Doc. 37 at ¶¶ 8-9; Doc. 37-8 at 6. (The Bishop asserts that the data is from August
2015, but the cited personnel chart includes teachers who were hired in January and February
2016 and includes information from as late as April 2016). Morris argues that the evidence is
irrelevant because she was fired in May 2015, eleven months earlier. But the evidence is not
irrelevant just because it includes teachers who were hired after Morris’s departure and may not
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include some teachers who were present at the time of Morris’s firing. Doc. 37-8 at 6 (personnel
chart showing that six teachers were hired after Morris was fired). Regardless of whether they
worked with Morris or were hired shortly after her termination, the fact that four teachers older
than Morris worked at MBTA in April 2016 is highly relevant to her claim that the school’s
management was biased against older teachers. See Faas v. Sears, Roebuck & Co., 532 F.3d
633, 643 (7th Cir. 2008) (affirming summary judgment in part because two employees who
“were several years older than” the plaintiff were ranked as the best performing employees in the
district, and noting that “[a] pattern where the protected-class members sometimes do better and
sometimes do worse than their comparators is not evidence of age discrimination”) (internal
quotation marks omitted); Jackson v. E.J. Brach Corp., 176 F.3d 971, 986 (7th Cir. 1999)
(affirming summary judgment in part because the defendant continued to employ several
individuals who “were the same age or older” than the plaintiff). The fact that the average age of
MBTA teachers was 49.5, even after any personnel changes made in 2015 and 2016, is likewise
relevant to assessing Morris’s age discrimination claim. See Jackson, 776 F.3d at 986.
Second, Morris moves to strike on hearsay grounds a paragraph from the Bishop’s Rule
56.1(a)(3) statement. Doc. 48 at 3-4. The paragraph asserts that at the beginning of the 20142015 school year, the parents of three students who had been in Morris’s kindergarten or prekindergarten classes expressed dissatisfaction with her teaching to assistant principal Sandra
Anderson and asked that they not be placed in her second-grade class. Doc. 37 at ¶ 49. The
parents’ statements are not hearsay because they are offered not for the truth of the matter
asserted (i.e., that Morris was, in fact, an unsatisfactory teacher), but rather as evidence that
Anderson believed, on the basis of the parents’ complaints and requests, that Morris was not
adequately performing her job. See Brill v. Lante Corp., 119 F.3d 1266, 1271 (7th Cir. 1997)
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(holding that out-of-court statements about an employee were not hearsay because the question
was not whether the statements were true, but whether the supervisor had an “honest belief” that
the statements were true).
Third, the Bishop moves to strike the affidavit of one of Morris’s former students. Doc.
52 at 1-3. Morris offers the affidavit to challenge the Bishop’s factual assertions regarding what
actually happened during a classroom lesson (of which more below) that prompted Anderson to
counsel Morris about her teaching. Doc. 46 at ¶ 59. The court need not resolve the motion
because, even if the affidavit were stricken, the relevant portion of Morris’s factual assertions
(that the student did not cry as a result of the lesson and that the lesson was not fraught with
interruptions) would remain supported by Morris’s own affidavit. Ibid.
Fourth, the Bishop moves to strike the affidavit of Morris’s coworker Beverly Beinlich.
Doc. 52 at 3-4. Morris offers the affidavit to support her assertion that most of the second-grade
students with known behavioral issues were assigned to her class rather than to the class of
Eileen Burke, who was in her twenties, and that Anderson picked on Morris as well as Beinlich
and Sue Connor, teachers close in age to Morris. Doc. 47 at ¶¶ 7, 8, 14. The court need not
resolve the motion because, even if Beinlich’s affidavit were stricken, Morris’s factual assertions
would remain supported by Morris’s and Connor’s affidavits. Ibid.
Fifth, the Bishop moves to strike Morris’s assertion in her Local Rule 56.1(b)(3)(C)
statement that, during the 2014-2015 academic year, “most of the students with known
behavioral issues such as ADHD, anger issues and miscellaneous related psychological
problems” were assigned to her class rather than Burke’s, insofar as the assertion relies on nonexpert psychological diagnoses. Doc. 52 at 4-5. To support her assertion, Morris cites the
affidavits of three former MBTA teachers, all of whom are lay witnesses. Doc. 47 at ¶¶ 7-8. In
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response to the Bishop’s objection, Morris clarifies that the teachers “are not giving an opinion
as to a health problem or offering any detailed medical diagnosis regarding the students …
assigned to Morris and not to Ms. Burke,” but instead base their averments on their “knowledge
about students with behavioral issues as opposed to students who do not.” Doc. 59 at 10. On
that understanding, the court will disregard Morris’s reference to ADHD and other
“psychological problems,” and will interpret her Local Rule 56.1(b)(3)(C) statement as an
assertion about the readily observable behavioral problems of the students in her class. See Fed.
R. Evid. 701 (providing that a non-expert witness may give opinion testimony that is “rationally
based on the witness’s perception” and “not based on scientific, technical, or other specialized
knowledge”); Farfaras v. Citizens Bank & Trust of Chi., 433 F.3d 558, 565-66 (7th Cir. 2006)
(permitting a lay witness to testify that an individual was “depressed” because the witness used
the term in its lay, rather than clinical, sense).
Finally, Morris moves to strike many of the Bishop’s responses to her Local Rule
56.1(b)(3)(C) statement, Doc. 50, on the grounds that they are extraneous or contain legal
argument. Doc. 67. In setting forth the facts below, the court will disregard the portions of the
Bishop’s responses that contain extraneous matter or contain legal argument.
With these preliminaries resolved, the following facts are set forth as favorably to Morris
as the record and Local Rule 56.1 permit. See Hanners v. Trent, 674 F.3d 683, 691 (7th Cir.
2012). On summary judgment, the court must assume the truth of those facts, but does not vouch
for them. See Arroyo v. Volvo Grp. N. Am., 805 F.3d 278, 281 (7th Cir. 2015).
Morris was born on July 10, 1959. Doc. 46 at ¶ 10. She has worked as an elementary
school teacher at several schools over the course of her career. Id. at ¶ 11. In June 2006, while
Morris was teaching at Our Lady of the Wayside, a report noted that she needed improvement in
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two areas related to classroom management. Id. at ¶ 17. The report was based on, at most, a
twenty-minute observation by the principal, and no one at the school ever counseled Morris on
her work performance. Ibid.
In 2011, Morris was hired by then-principal Sandra Perez as a pre-kindergarten teacher at
MBTA, which is operated by the Archdiocese of Chicago. Id. at ¶¶ 3, 12. MBTA was a
challenging place to teach; it had high student turnover, and most students came from lowincome, non-English-speaking families. Doc. 47 at ¶¶ 1-2. It was the norm at MBTA for
students to exhibit behavioral problems in the classroom. Id. at ¶ 2.
Sister Erica Jordan took over as the principal of MBTA after the 2011-2012 school year.
Doc. 46 at ¶ 13. Jordan asked Morris to teach kindergarten for the 2012-2013 school year and
then moved her to second grade for the 2013-2014 school year. Ibid. Jordan testified that after
she observed Morris’s second-grade classroom early in the year and found the children loud and
off task, she had an informal conversation with Morris about how her classroom operated. Id. at
¶ 41. Morris disputes that her classroom was loud during the 2013-2014 year and asserts that she
always knew the lessons she was teaching, but she does not dispute that this conversation with
Jordan occurred. Ibid.; Doc. 45-4 at ¶ 10.
In late October or early November 2013, Sandra Anderson joined MBTA as a volunteer
and later was named the assistant principal. Doc. 50 at ¶ 9. Jordan told the MBTA faculty that
Anderson would help to mentor them. Doc. 47 at ¶ 12. Soon after she arrived, Anderson began
“picking on” Morris and two other teachers close to Morris in age, Sue Connor and Beverly
Beinlich. Id. at ¶ 14. *
*
Morris’s brief and Connor’s affidavit assert that Anderson regularly sent reading and behavior
specialists to the classroom of a younger teacher, Eileen Burke, while denying other teachers’
requests for the specialists’ assistance. Because those assertions are not included in Morris’s
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As part of her job, Anderson observed and evaluated teachers’ classroom performance.
Doc. 46 at ¶ 30. Anderson made hiring and firing decisions in conjunction with Jordan, who had
final authority. Doc. 47 at ¶¶ 11, 13. Anderson conducted several formal observations of Morris
during the 2013-2014 year. Doc. 46 at ¶ 39. After each observation, Anderson provided Morris
with feedback and suggestions for improvement. Id. at ¶ 40. Anderson gave Morris constructive
criticism in December 2013 and offered a critique of Morris’s performance in February 2014,
with which Morris disagreed. Id. at ¶ 44.
At Anderson’s request, a behavioral specialist, Joanne Gordon, observed Morris’s
classroom in 2014. Id. at ¶ 42. Neither Anderson nor Jordan had ever asked Gordon to conduct
a general observation of a teacher at MBTA. Doc. 47 at ¶¶ 39-40. Gordon’s report noted that
the students in Morris’s classroom were shouting and not paying attention, and also that Morris
was teaching an age-inappropriate lesson. Doc. 46 at ¶ 43. Gordon concluded that Morris did
not have the skills to address her students’ behavior problems. Ibid. Morris denies all of
Gordon’s observations. Ibid. The court resolves in Morris’s favor the dispute over what actually
occurred in her classroom.
In May 2014, Morris received a summative evaluation indicating that she needed
improvement in student engagement and classroom management. Id. at ¶ 45; Doc. 47 at ¶ 34.
As Jordan testified, certain other aspects of Morris’s performance had improved during the 20132014 year. Doc. 47 at ¶ 34. Anderson recommended to Jordan that Morris’s contract be
Local Rule 56.1(b)(3)(B) response or Local Rule 56.1(b)(3)(C) statement, they are disregarded.
See Midwest Imps., Ltd. v. Coval, 71 F.3d 1311, 1317 (7th Cir. 1995) (holding that the
predecessor to Local Rule 56.1(b)(3) “provides the only acceptable means of … presenting
additional facts to the district court”); Dunhill Asset Servs. III, LLC v. Tinberg, 2012 WL
3028334, at *3 (N.D. Ill. July 23, 2012) (“Under settled law, facts asserted in a brief but not
presented in a Local Rule 56.1 statement are disregarded in resolving a summary judgment
motion.”) (citing cases) (internal quotation marks omitted). Based on the legal analysis set forth
below, even crediting Morris’s assertions would not alter the outcome of the Bishop’s motion.
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renewed, id. at ¶ 35, and Morris was given a contract to teach second grade again during the
2014-2015 school year, Doc. 46 at ¶ 48.
Before a teacher who has been with the Archdiocese for over a year can be removed, the
school must show incompetence and also must give the teacher an opportunity to improve her
performance. Doc. 47 at ¶ 26. A remediation plan was drawn up for Morris at the end of the
2013-2014 year; the plan provided that she would be given access to consultants to assist her.
Doc. 46 at ¶ 46. Morris denies that she ever received or knew about the plan. Ibid. She did not
sign the plan, as was generally required, and Anderson and Jordan did not carry out several of its
provisions. Doc. 47 at ¶¶ 27-28. The disputes over whether Morris was notified of the plan and
whether it was actually put in place are resolved in Morris’s favor.
At the beginning of the 2014-2015 school year, Morris was the sole second-grade teacher
at MBTA. Id. at ¶ 3. Due to the large number of second-grade students, the class was split into
two and a new teacher was hired. Id. at ¶ 4. The new teacher quit after a week and was replaced
by Eileen Burke, who, as noted above, was in her twenties. Ibid.; Doc. 45 at 8. Anderson and
Jordan were responsible for assigning students to the two second-grade classes. Doc. 47 at ¶¶ 56. Morris was assigned most of the students with known behavioral issues. Id. at ¶ 7. The
students in Burke’s class did not have similar behavior problems. Id. at ¶ 8. According to
Anderson, and as noted above, the parents of three students asked that their children not be
placed in Morris’s class because they were dissatisfied with her performance as a kindergarten or
pre-kindergarten teacher. Doc. 46 at ¶ 49.
Anderson observed Morris’s teaching on four occasions during the 2014-2015 school
year. Id. at ¶ 51. Anderson met with Morris and asked a math consultant to intervene on the
ground that Morris was not implementing differentiation—that is, she was not creating varied
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lessons and tasks that engaged students at different skill levels. Id. at ¶ 52. Morris does not
dispute that Anderson spoke with her about differentiation or that the math consultant came to
her classroom, but she asserts that she was appropriately implementing differentiation. Ibid.
The dispute over whether Morris implemented differentiation is resolved in her favor, but the
court accepts that Anderson spoke with Morris about differentiation and that the consultant
visited her classroom.
Anderson testified that, after observing Morris’s classroom in March 2015, she requested
a meeting with Morris to discuss behavior management. Doc. 46 at ¶ 53. Morris does not
dispute that Anderson requested a meeting, but asserts that Anderson did not indicate the reason
for the meeting. Ibid. That narrow dispute is resolved in Morris’s favor.
According to Anderson, Morris taught an inappropriate lesson on racism that caused an
African-American student to cry. Id. at ¶ 59. Anderson also asserts that the classroom was
chaotic during that lesson and that she later counseled Morris about those issues. Ibid. Morris
denies that the student was upset, but does not dispute that Anderson counseled her. Ibid. The
dispute over what occurred in the classroom that day is resolved in Morris’s favor.
At one point, Morris brought a letter to Jordan for translation that Morris intended to send
to her students’ parents regarding their classroom behavior. Doc. 47 at ¶ 36. Jordan told Morris
she did not want Morris to send the letter, and Morris complied. Ibid.
In May 2015, Anderson and Jordan told Morris that her contract would not be renewed.
Doc. 46 at ¶ 64. At that time, Anderson and Jordan reviewed with Morris her summative
evaluation for the 2014-2015 school year. Ibid. Morris disagreed with all of the criticism in the
evaluation. Id. at ¶ 65. Morris was 55 years old at the time of her firing. See id. at ¶ 10.
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As of February 2016, MBTA had seventeen elementary school teachers with ages
ranging from 23 to 64 and an average age of 49.5. Id. at ¶ 8. Four of the teachers were older
than Morris. Id. at ¶ 9. Morris’s replacement was 48 years old at the time she was hired. Id. at
¶ 67; Doc. 37-8 at 6.
Discussion
The Bishop contends that an age discrimination plaintiff “may establish her claim using
either the direct or indirect methods of proof” and that Morris “relies solely on the indirect
method, which is based on the burden-shifting approach articulated in McDonnell Douglas Corp.
v. Green, 411 U.S. 792, 802 (1973).” Doc. 38 at 3. In Ortiz v. Werner Enterprises, Inc., 834
F.3d 760 (7th Cir. 2016), the Seventh Circuit rejected the distinction between the direct and
indirect methods for opposing summary judgment, stating that “[t]he time has come to jettison
these diversions and refocus analysis on the substantive legal issue.” Id. at 764. The substantive
legal issue in Ortiz was “[w]hether a reasonable juror could conclude that Ortiz would have kept
his job if he had a different ethnicity, and everything else had remained the same.” Ibid. The
district court appeared to have considered some evidence under the “direct method” but not
under the “indirect method,” and vice versa, id. at 763, and the Seventh Circuit held that to be
reversible error, id. at 767. In the process, the Seventh Circuit overruled numerous
precedents “to the extent that [they] insist on the use of the direct-and-indirect
framework.” Id. at 765-66. Ortiz also overruled precedents that instructed district courts to
determine under the direct method whether the plaintiff had presented a “convincing mosaic” of
circumstantial evidence. Id. at 764-65.
To survive summary judgment, then, a plaintiff must present evidence that, considered as
a whole, would allow a reasonable juror to conclude that she was discriminated against due to a
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protected characteristic, suffering an adverse employment action as a result. See Cole v. Bd. of
Trs. of N. Ill. Univ., 838 F.3d 888, 899 (7th Cir. 2016). McDonnell Douglas identifies one
pattern of evidence that would enable a reasonable juror to find discrimination—namely, a
pattern showing that the plaintiff belonged to a protected class, met her employer’s legitimate
expectations, suffered an adverse employment action, and was similarly situated to other
employees who were not members of the protected class and who were treated better, provided
that the defendant fails to articulate a reasonable alternative explanation or the plaintiff shows
that the proffered alternative explanation is a pretext. But the McDonnell Douglas pattern is just
one way that the record evidence could enable a reasonable juror to find discrimination. See
Volling v. Kurtz Paramedic Servs., Inc., 840 F.3d 378, 383 (7th Cir. 2016) (noting that
McDonnell Douglas provides “a common, but not exclusive, method of establishing a triable
issue of intentional discrimination”) (internal quotation marks omitted). A court must not
confine its analysis to McDonnell Douglas (unless the plaintiff limits herself to the McDonnell
Douglas framework) or treat some evidence as relevant under McDonnell Douglas but not to the
broader question whether “a reasonable factfinder [could] conclude that the plaintiff’s race,
ethnicity, sex, religion, or other proscribed factor caused the discharge or other adverse
employment action.” Ortiz, 834 F.3d at 765.
“To establish a disparate-treatment claim under … the ADEA … a plaintiff must prove
that age was the ‘but-for’ cause of the employer’s adverse decision.” Gross v. FBL Fin. Servs.,
Inc., 557 U.S. 167, 176 (2009). One piece of evidence weighs very heavily against Morris’s
claim: the teacher hired by Anderson and Jordan to replace Morris was 48 years old, just seven
years younger than Morris was when she was fired, and just six years younger than Morris was
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when Anderson began picking on her. The fact that Anderson and Jordan hired a replacement so
close in age to Morris strongly suggests that her age was not the but-for cause of her firing.
The Seventh Circuit has held that anything less than a ten-year difference in age between
a plaintiff alleging discriminatory discharge and her replacement is “presumptively insubstantial”
and does not create an inference of age discrimination. Hartley v. Wis. Bell, Inc., 124 F.3d 887,
893 (7th Cir. 1997); see also Tubergen v. St. Vincent Hosp. & Health Care Ctr., Inc., 517 F.3d
470, 475 n.4 (7th Cir. 2008). Of course, in keeping with Ortiz’s command to consider the entire
record rather than to mechanically apply legal tests, an insubstantial age gap does not necessarily
doom an age discrimination claim. But to create a viable inference of discrimination in those
circumstances, the plaintiff must “direct[] the court to evidence that her employer considered her
age to be significant.” Hartley, 124 F.3d at 893; see also Bennington v. Caterpillar, Inc., 275
F.3d 654, 659 (7th Cir. 2001).
The only age-related evidence offered by Morris is: (1) Anderson assigned the secondgrade students with behavioral problems to Morris rather than to Burke, who was in her twenties;
and (2) Anderson “picked on” Morris and two other teachers close to her age. In isolation, those
alleged instances of disparate treatment might possibly suggest that Anderson harbored ageist
sentiments and acted on those sentiments when firing Morris. But any such inference is very
weak and cannot survive the fact that Morris was replaced by a person who was 48 years old,
eight years older than the threshold for protection under the ADEA, see 29 U.S.C. § 631(a), and
just seven years younger than Morris was at the time of her firing. On this record, no reasonable
juror could find that Anderson fired the 55-year-old Morris because of her age given that
Anderson immediately thereafter hired a 48-year old to replace her. See Hartley, 124 F.3d at 893
(granting summary judgment because the six- and seven-year age gaps between the plaintiff and
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two coworkers were “presumptively insubstantial” and because “the record reveals no evidence
that [the defendant] viewed the [plaintiff’s] age of 51 itself to be significant”); Richter v. HookSupeRx, Inc., 142 F.3d 1024, 1029 (7th Cir. 1998) (granting summary judgment because “a
seven-year age difference is a presumptively insubstantial gap” and because “the record reveals
no evidence that [the defendant] viewed the age of 52 to be significant”); Bennington, 275 F.3d
at 659-60 (granting summary judgment because the five-year age difference was presumptively
insubstantial and because the defendant’s alleged mistreatment of the plaintiff did not “evidence
hostility on the basis of age”). The fact that, just eleven months after Morris’s firing, four out of
seventeen elementary school teachers at MBTA were older than Morris, and that the average age
of those seventeen teachers was 49.5 years, provides confirmation (though no confirmation is
necessary) for that conclusion. See Faas, 532 F.3d at 643; Jackson, 176 F.3d at 986.
Because Morris has failed to present evidence from which a reasonable juror could find
that she was fired because of her age, it makes no difference whether Morris did or did not have
problems with classroom management, or even whether Anderson and Jordan treated her
unfairly in some way. As long as the reason for Morris’s dismissal was not her age—which, for
the reasons just stated, it indisputably was not—her age discrimination case necessarily fails.
See St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 516 (1993) (holding that an employer may be
liable for discrimination only if the plaintiff shows “that the [employer’s proffered] reason was
false, and that discrimination was the real reason”); Burks v. Wis. Dep’t of Transp., 464 F.3d
744, 754 (7th Cir. 2006) (noting that when the plaintiff’s evidence fails to create an inference of
discrimination, “it is unnecessary to reach the issue of pretext”); Wallace v. SMC Pharm., Inc.,
103 F.3d 1394, 1399 (7th Cir. 1997) (observing that the plaintiff “must persuade the trier of fact
that the true reason [for the adverse employment action] was a discriminatory one”).
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Conclusion
The Bishop’s summary judgment motion is granted. Judgment will be entered in favor of
the Bishop and against Morris.
May 4, 2018
United States District Judge
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