Jackson v. Board of Education of Rockford Public Schools District 205 et al

Filing 214

WRITTEN Opinion entered by the Honorable Philip G. Reinhard on 9/18/2012: For the reasons stated below, defendants' motion for summary judgment 163 is granted. Judgment is entered in favor of defendants and against plaintiff. This case is terminated. [For further details see order.] Electronic notice(jat, )

Order Form (01/2005)

United States District Court, Northern District of Illinois

Name of Assigned Judge
or Magistrate Judge

Philip G. Reinhard

CASE NUMBER

08 C 50201

CASE
TITLE

Sitting Judge if Other
than Assigned Judge

DATE

9/18/2012

Dr. Kenneth Jackson vs. Board of Education of Rockford Public Schools, et al.

DOCKET ENTRY TEXT:

For the reasons stated below, defendants’ motion for summary judgment is granted. Judgment is entered in
favor of defendants and against plaintiff. This case is terminated.

O[ For further details see text below.]

Electronic Notices.

STATEMENT - OPINION
Plaintiff, Dr. Kenneth Jackson, an African-American man over the age of forty, brings this action
against defendants, Board of Education of Rockford Public Schools District No. 205 (“Board”) and Linda
Hernandez, individually and as an agent for the Board. Jurisdiction is proper under 28 U.S.C. § 1331.
In July 2006, plaintiff was recruited for the job of principal of Jefferson High School by Dr. Dennis
Thompson, the superintendent of the Rockford School District at that time. The Board hired plaintiff for that
position. Plaintiff served as principal during the 2006-07 and 2007-08 school years. Between these two
school years, in August 2007, Thompson left his position as superintendent and the Board appointed
defendant, Linda Hernandez, as the interim superintendent. On or about April 9, 2008, the Board voted not to
renew plaintiff’s contract for the upcoming school year. Plaintiff claims race, age, and sex discrimination and
retaliation. Defendants move for summary judgment.
The adverse employment actions underlying plaintiff’s claims are the non-renewal of his contract as
principal of Jefferson in April 2008, his being placed on paid administrative leave during the 2007-08 school
year while an investigation was undertaken into the complaint of the teachers’ union that he had ordered
hundreds of failing grades to be changed to passing grades and ordered diplomas to be issued to students who
had not passed the Constitution test or certain required courses during the preceding school year, and his
temporary assignment to a truant officer position during the 2007-08 school year.
“No one may teach or supervise in the public schools nor receive for teaching or supervising any part
of any public school fund, who does not hold a certificate of qualification granted by the State Board of
Education or by the State Teachers Certification Board and a regional superintendent of schools.” 105 ILCS
5/21-1 (2008). “A provisional certificate may be issued to a person who meets the requirements for a regular
. . . administrative certificate in another State. . . . A certificate earned under this plan is valid for a period of
2 years and shall not be renewed; however, the individual to whom this certificate is issued shall have passed
or shall pass the examinations set forth by the State Board of Education within 9 months of the date of the
issuance of the provisional certificate. Failure to pass the tests . . . shall result in the cancellation of the
provisional certificate.” 105 ILCS 5/21-10 (B) (2008).
Plaintiff never obtained a certificate of qualification for a principal as required under 105 ILCS 5/21-1
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STATEMENT - OPINION
(2008). He received a provisional certificate under 105 ILCS 5/21-10 (B) (2008) but it was cancelled on
August 27, 2007 for failure to pass the required tests (the Basic Skills Test and the Principal Test) within 9
months of its issuance. Before this cancellation, plaintiff had applied on August 17, 2007 for an
administrative certificate with superintendent endorsement. On September 11, 2007, plaintiff was placed on
paid administrative leave in conjunction with the grade changing investigation. On September 18, 2007,
plaintiff was removed from his position as principal and placed in a truant officer position. On October 16,
2007, plaintiff obtained a provisional administrative certificate with superintendent endorsement and was
returned to his position as principal at Jefferson. Hernandez advised plaintiff at this time that he would be
required to submit proof he had passed the necessary tests (Basic Skills Test and Superintendent or Principal
Test) prior to the time the Board made its staffing decisions for the 2008-09 school year or the Board would
plan on getting a new principal for Jefferson for 2008-09. Plaintiff filed an EEOC charge alleging race,
gender, and age discrimination and retaliation on December 13, 2007. Plaintiff failed the Basic Skills Test in
early 2008. On April 9, 2008, the Board voted not to renew plaintiff’s contract. Plaintiff’s provisional
certificate was terminated by the State Board of Education on June 30, 2008.
Defendants argue the fact plaintiff never obtained a certificate of qualification and did not pass the
tests required to maintain his provisional certificate require summary judgment in defendants’ favor. Plaintiff
concedes he did not have the certification required by Illinois law for him to serve as a principal but claims
other administrators, who were not members of his protected classes, lacked proper certification as well but
were allowed to continue in their positions and were not terminated or otherwise subjected to adverse action
on account of their failure to meet the requirements of the state law.
Under Illinois law, a basic condition of the Board’s duty to employ and pay plaintiff was that plaintiff
be certified for his position. Lewis-Connelly v. Bd of Educ. of Deerfield Public Schools, 660 N.E.2d 283, 286
(Ill. App. 1996). The sections of the School Code cited above (105 ILCS 5/21-1 and 5/21-10 (B)) must be
considered a part of the employment contract between the Board and plaintiff. Id. at 287. In the absence of a
currently valid certificate, “an essential condition of the contract was no longer satisfied [and] the contract
was no longer binding on the Board.” Id. As a purely contractual matter, the Board was justified in
transferring plaintiff to a non-certified position when his original provisional certificate lapsed and in not
renewing his contract when renewal time came because he did not have a certificate valid for the next school
year.
Plaintiff seeks to establish a prima facie case of discrimination and retaliation under the indirect
method. To do this he must show he is 1) a member of a protected class (or engaged in protected activity); 2)
was meeting his employer’s legitimate job performance expectations; 3) suffered an adverse employment
action; and 4) similarly situated individuals who were not in the protected class (or did not engage in
protected activity) were treated more favorably. See Coleman v. Donahoe, 667 F.3d 835, 845 (7th Cir. 2012).
Once the prima facie case is established, the burden shifts to the employer to articulate a legitimate
nondiscriminatory reason for its action. Id. When it does so, the burden shifts back to plaintiff to present
evidence that the stated reason is a pretext. Id. When, as here, failure to meet legitimate expectations is cited
as the justification for the adverse employment action “the performance element of the prima facie case
cannot be separated from the question whether the employer proffered a nonpretextual explanation for its
challenged conduct.” Duncan v. Fleetwood Motor Homes of Indiana, Inc., 518 F.3d 486, 491 (7th Cir.2008).
In other words, were the cited “legitimate expectations” actually legitimate or were they themselves the
pretext. The standard for granting summary judgment is whether viewing the evidence in the light most
favorable to the plaintiff, there is no genuine issue of material fact that must be decided by a jury. Id.
On the face of it, not maintaining a state-required certification for a job would appear to be a failure to
meet legitimate job performance expectations. Illinois law requires a regular administrative certificate be
obtained by grant of the “State Board of Education or by the State Teachers Certification Board and a regional
superintendent of schools.” It provides for a provisional certificate for a limited period of time with certain
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STATEMENT - OPINION
requirements to maintain it and to ultimately obtain a regular certificate. Plaintiff did not meet the
requirements to maintain his original provisional certificate with general administrative endorsement (this
endorsement allows serving as a principal) and it lapsed. When he obtained a second provisional certificate
with superintendent endorsement, he was reinstated as principal and served as principal under its authority.
As of the time a decision on his contract renewal needed to be made, plaintiff had not passed the tests needed
to continue under his second provisional certificate.
Plaintiff’s argument is that the Board ignored the state law in the cases of other administrators so it
was obligated to ignore it as to him and that its failure to do so evidences the Board’s race, gender and age
bias (and retaliatory intentions) against him. Plaintiff does not cite any cases where a court has held that an
employer’s refusal to violate state law evenhandedly rendered the employer liable to an employee for failing
to violate it on the employee’s behalf. He asserts the defendants implemented certain accommodations
(assigning properly-certificated “mentors” or “sham” administrators) to allow others to work as
administrators without proper certification but did not do so for him. He does not claim he asked for such an
accommodation.
Plaintiff contends Dr. Thompson, Dr. Sheffield, Earl Hernandez, Renneth Richardson, Mike Campbell
and Linda Cooper all worked for the Board as administrators without proper certification. Dr. Thompson was
the superintendent at the time of plaintiff’s hire. He apparently served without certification for many months.
The State Board of Education apparently never notified the Board that Dr. Thompson was not certified during
that period. Dr. Fairgrieves, the Regional Superintendent of Schools, whose office dealt with certifications,
testified in his deposition that Dr. Thompson qualified for a certificate but was slow in getting in his
paperwork. While plaintiff maintains he also was qualified, the State Board of Education determined he
needed to pass two tests to maintain his provisional certification and obtain regular certification. He never
passed both tests and, in fact, failed the Basic Skills Test. Plaintiff is not similarly situated to Dr. Thompson.
Dr. Sheffield was hired by the Board as superintendent after plaintiff’s non-renewal. The evidence
shows she was uncertified at the time she was hired, that the State Board notified Dr. Fairgrieves of this fact
and that the Board appointed defendant, Linda Hernandez, to serve as superintendent for a brief while until
Dr. Sheffield passed the required tests and obtained her certification. Plaintiff never passed both required
tests. Plaintiff is not similarly situated to Dr. Sheffield.
Earl Hernandez had a teaching certificate but not an administrative certificate. Plaintiff claims Earl
Hernandez served as principal of East High School, under the title of Chief Operating Officer (“COO”),
without having the necessary administrative certificate. At the time, Todd France was the principal of East
High School but plaintiff maintains Earl Hernandez exercised the functions of principal, including
administrative tasks requiring an administrative certificate. Earl Hernandez’s deposition testimony was that
he performed duties as the COO (he also refers to this position as a “12-month Dean”) to “handle all of the
functions of the building so that the principal could devote all his efforts to making sure teachers were
evaluated and that the academic side of the building was running right.” He handled “anything that had to do
with any part of the operation of the school that the principal didn’t handle which was the academic side.”
Once he assumed the COO position, he testified the principal, Todd France, was able to evaluate close to 100
teachers in the first year.
Plaintiff’s evidence is only his own observation that Earl Hernandez attended principal meetings and
his statement Earl Hernandez had evaluated a teacher named Jane Eckerhardt. [According to Dr. Fairgrieve’s
deposition testimony, teacher evaluation could only be done by certified administrators and the evaluation
could be disregarded as non-authoritative if done by someone else and challenged by the teacher.] This
evaluation is not included in the record. Earl Hernandez testified he attended principal meetings that dealt
with facilities issues but that France attended the academic-focused meetings. Plaintiff’s evidence, and all of
the evidence taken most favorably to the plaintiff, does not support a claim Earl Hernandez was serving as an
uncertified administrator.
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STATEMENT - OPINION
Plaintiff maintains that Renneth Richardson and Michael Campbell both served as principals without
administrative certificates. His evidence is a newspaper article in which the Board’s attorney is quoted. This
is inadmissible hearsay and will not be considered. See Cody v. Harris, 409 F.3d 853, 860 (7th Cir. 2005).
Even if it were considered, the statement does not support the claim Richardson and Campbell were
principals and, in fact, expressly states they were not. He presents no evidence that the designated principals
at the schools where Richardson and Campbell served were not the actual principals.
Plaintiff states Linda Cooper was placed as an assistant principal and Kennedy Middle School
effective September 9, 2006 but did not earn her administrative certificate until October 16, 2008. In support
of this claim, he cites to paragraph 37 of his statement of facts. Paragraph 37 states: “During Dr. Jackson’s
employment, the School District employed numerous teachers and administrators without valid Illinois
certification.” It does not say anything about Linda Cooper being an assistant principal. Paragraph 37
references certain exhibits which contain the name Linda Cooper, one of which is a payroll and personnel
information sheet with an effective date of 9/13/06 which states under the word “Subject” the entry “007611
Ass’t Prin.” Another exhibit, labeled “Current Educator Credentials” shows a Linda L. Cooper as having an
administrative certificate issued 10/16/2008. However, neither exhibit addresses the certification status of
Linda Cooper prior to 10/16/2008 nor does anything in the record indicate she had duties requiring an
administrative certificate.
Plaintiff has not presented evidence that shows requiring him to have an administrative certificate was
not a legitimate job requirement. He has not shown that similarly situated uncertified administrators were
treated more favorably or that his lack of certification was a pretext for discrimination. Accordingly, he has
failed to establish a prima facie case under the indirect method for all of his Title VII (race, gender,
retaliation), section 1981 and section 1983 and ADEA claims.
Plaintiff also claims he has established a prima facie case under the direct method. The direct method
requires plaintiff to produce either direct or circumstantial evidence that would allow a jury to infer
discrimination motivated the adverse employment action. Dass v. Chicago Bd of Educ., 675 F.3d 1060, 1071
(7th Cir. 2012). Plaintiff does not present any direct evidence but rather relies on circumstantial evidence. To
defeat summary judgment using circumstantial evidence, plaintiff is only required to present evidence from
which a rational trier of fact could reasonably infer the adverse employment action was taken because
plaintiff was a member of a protected class or engaged in protected activity. See id. Three types of
circumstantial evidence of intentional discrimination are recognized: 1) suspicious timing, ambiguous
statements, behavior or comments directed at other employees in the protected class (or who engaged in
protected activity), and other “bits and pieces” from which an inference of discriminatory intent can be
drawn; 2) evidence similarly situated employees outside the protected class (or who did not engage in
protected activity) received systematically better treatment; and 3) evidence the employer’s stated reason for
the adverse action was a pretext for discrimination. Id.
As discussed above, the evidence does not show similarly situated employees received better
treatment nor that the stated reason for the non-renewal was a pretext. Plaintiff argues the grade change
investigation instigated by Hernandez prior to his temporary assignment to the truant officer position,
Hernandez’s negative and false statements about plaintiff, and her false and negative performance evaluation
of plaintiff are sufficient circumstantial evidence to allow an inference of discriminatory intent. The teacher’s
union had filed a grievance concerning plaintiff’s changing a number of students’ grades from “F” to “D”.
Jason Cummins reported in his declaration that Hernandez had told him plaintiff had gotten his doctorate
from a fake, unaccredited online school in Jamaica, that he could not read or write and had gotten someone
else to complete his doctorate and that plaintiff had lied about serving with the Marines during the Vietnam
War. Hernandez prepared an evaluation of plaintiff in which she rated his performance “unsatisfactory”.
“The circumstantial evidence a plaintiff presents must point directly to a discriminatory reason for the
employer’s action.” Id. (internal quotation marks and citations omitted.) It is undisputed the grade change
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STATEMENT - OPINION
investigation occurred after the teachers’ union filed a grievance concerning the grade changes. While the
comments attributed to Hernandez and her evaluation of plaintiff indicate she wanted to get rid of him,
nothing about them shows them to be motivated by race, gender, age, or retaliation as opposed to personal
animosity or a belief he was not suited to his position. See id. at 1072 (“There is no doubt that Jeske wanted
to get rid of Dass, but Dass’s evidence does not create a genuine factual issue as to whether Jeske was
motivated by national origin discrimination.”).
Plaintiff claims retaliation by Hernandez when she “intensified a campaign to harass, intimidate” him
after he filed an EEOC charge on November 19, 2007. He cites Hernandez’s request for additional police
presence at Jefferson, assignment of two experienced administrators to Jefferson who would report to her not
plaintiff, requiring plaintiff to submit written daily updates to her and requiring him to spend at least 50% of
the day in the halls or cafeteria as evidence of this retaliation ultimately leading to the adverse employment
action of his contract non-renewal. Plaintiff argues similarly-situated employees (the other administrators he
claims lacked proper certification discussed above) who did not file EEOC charges or engage in other
protected activity, “all worked off-certificate, and were not suspended or terminated.” However, as discussed
above, plaintiff has not shown that similarly situated uncertified administrators were treated more favorably
or that his lack of certification was a pretext for his contract not being renewed. See Coleman, 667 F.3d at
845. He does not explain why the other factors he cites (more police, spending 50% of his time in the halls or
cafeteria, etc.) are adverse actions nor does he show other similarly situated administrators received different
treatment.
Plaintiff contends Hernandez subjected him to a hostile work environment. To survive summary
judgment on a hostile work environment claim, plaintiff must demonstrate 1) that his work environment was
both objectively and subjectively hostile; 2) that the harassment was based on his membership in a protected
class or his protected activity; 3) that the conduct was either severe or pervasive; and 4) that there is a basis
for employer liability. Jajeh v. County of Cook, 678 F.3d 560, 566 (7th Cir. 2012). He asserts the grade
change investigation, the temporary assignment to the truant officer position, the placement of two
administrators at Jefferson who reported directly to Hernandez and operated at her direction, requiring
plaintiff to spend more than half of his time walking the hallways and requiring him to send daily progress
reports constitute the hostile environment. However, there is nothing objectively hostile about these actions,
nothing indicates they were motivated by plaintiff’s membership in a protected class or his protected activity.
They cannot be characterized as severe or pervasive. Plaintiff’s hostile work environment claim fails.
Plaintiff claims the Board is liable under a “cat’s paw” theory for Hernandez’s discriminatory and
retaliatory actions and also that defendants violated Title VI by engaging in race discrimination while
receiving federal funds. However, the elements of a prima facie case are the same under Title VI as they are
under Title VII. Brewer v. Bd of Trustees of the Univ. of Ill., 479 F.3d 908, 921 (7th Cir.2007). The Title VI
claim fails for the same reasons discussed above for the Title VII claims. Since Hernandez is not liable to
plaintiff for anything, the cat’s paw theory of liability for the Board also fails.
For the foregoing reasons, defendants’ motion for summary judgment is granted. Judgment is entered
in favor of defendants and against plaintiff. This case is terminated.

08C50201 Dr. Kenneth Jackson vs. Board of Education of Rockford Public Schools, et al.

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