Anderson v. Board of Education of Cahokia School District No. 187

Filing 68

ORDER granting 36 Motion for Summary Judgment brought by Defendant Board of Education of Cahokia School District No. 187 ("the Board"). It is hereby ORDERED that this action is DISMISSED with prejudice; see attached order for details. The Court DENIES as moot 49 , 51 , 53 , 55 , 56 , 59 , and 61 Motions in Limine brought by the Board. The Clerk of Court shall enter judgment in accordance with the attached order. Signed by Judge G. Patrick Murphy on 2/14/2012. (jhs)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
STANLEY ANDERSON,

)
)
Plaintiff,
)
)
vs.
)
)
BOARD OF EDUCATION OF CAHOKIA )
SCHOOL DISTRICT NO. 187,
)
)
Defendant.
)

CIVIL NO. 11-101-GPM

MEMORANDUM AND ORDER
MURPHY, District Judge:
This matter is before the Court on a motion for summary judgment brought by
Defendant Board of Education of Cahokia School District No. 187 (“the Board”) (Doc. 36).
Plaintiff Stanley Anderson, who formerly was employed by Cahokia School District No. 187
(“the District”) as a custodian, alleges that he was terminated by the Board in retaliation for
criticisms of the District’s facilities by Anderson’s wife, Bernadette Anderson, who is not a party
to this case. Mr. Anderson asserts a claim under 42 U.S.C. § 1983 against the Board for an alleged
violation of his First Amendment rights. He demands compensatory and punitive damages, as well
as attorneys’ fees and costs. The Board claims that Mr. Anderson was terminated not for his wife’s
criticisms of the District’s facilities but for poor job performance, namely, repeated failures of tests
for drug and alcohol usage, in violation of a collective bargaining agreement (“CBA”) between the
Board and Mr. Anderson’s union and District policy. Mr. Anderson argues in turn that the Board’s
stated reason for terminating him is pretextual. The Board’s motion for summary judgment has been
fully briefed by the parties. The Court rules as follows.
Page 1 of 15

To summarize the pertinent factual background of this case, in 2000 Mr. Anderson was hired
as a custodian by the District and terminated by the Board, an entity with seven members that is the
governing body of the District, on July 12, 2010. During Mr. Anderson’s employment with the
District, he was a member of the collective bargaining unit represented by the Service Worker’s
Council of the Cahokia Federation of Teachers, Local # 1272 (“the Union”). Under the CBA in
place between the Union and the Board when Mr. Anderson was terminated, members of the Union
agreed to submit to random drug testing. Additionally, the CBA provided for discipline, up to and
including termination, for members of the Union found to be under the influence of drugs or alcohol
on the job; the CBA provided also that members of the Union found to be under the influence of
alcohol or drugs on the job were not subject to progressive discipline and instead could be terminated
immediately. However, the CBA vested the Board with discretion to place a union member found
to have violated the terms of CBA regarding drug and alcohol use on the job on any step of the
progressive discipline system that the Board might choose. Additionally, under the CBA, if the
Board exercised its discretion to place a member of the Union who had committed drug or alcohol
violations of the terms of the CBA on progressive discipline, the Board nonetheless could terminate
the Union member’s employment at any time without completing the progressive discipline
procedure if the union member committed any further drug- or alcohol-related offenses.
Mr. Anderson also was subject during his employment with the District to a “Drug and Alcohol-Free
Workplace Policy,” under the terms of which District employees were prohibited from using or being
under the influence of drugs or alcohol while on the District’s premises or performing work for the
District.

District employees who violated this policy were subject to discipline, including

completion of a drug or alcohol rehabilitation program.
Page 2 of 15

It appears that on April 18, 2001, Mr. Anderson failed a random drug test, testing positive
for marijuana. Mr. Anderson was referred to the District’s employee assistance program (“EAP”)
and required to undergo a course of drug rehabilitation. On July 5, 2001, a counselor with the EAP
advised the District that Mr. Anderson had successfully completed his drug rehabilitation course and
could return to work, whereupon Mr. Anderson resumed his work for the District as a custodian.
On October 17, 2005, Mr. Anderson failed a random breathalyzer test; three separate breathalyzer
tests showed that Mr. Anderson’s blood alcohol content was impermissibly high. As a result of
failing the breathalyzer tests, Mr. Anderson was referred to the Board’s personnel committee for a
determination of the disciplinary action against him that would be recommended to the Board by the
personnel committee. On November 15, 2005, the Board informed Mr. Anderson by letter that he
would be suspended from work for ten days without pay as punishment for failing the breathalyzer
tests; in the same letter, the Board advised Mr. Anderson that it could have terminated him
immediately but instead was giving him one more chance. The Board cautioned Mr. Anderson that
being intoxicated at work was a serious failure to comply with the rules governing his employment
and that any further such incidents would result in his termination. Finally, on May 3, 2010,
Mr. Anderson again failed a random breathalyzer test. Under the CBA between the Board and the
Union, if a breathalyzer test is administered to a member of the Union during the first hour of his or
her working day, the Union member’s blood alcohol content must be less than 0.02%. If a
breathalyzer test is administered to a member of the Union during the second hour of his or her
working day, the Union member’s blood alcohol content must be less than 0.01%. However, if a
breathalyzer test is administered to a member of the Union after the second hour of his or her
working day, then the Union member’s blood must be free of any alcohol. It appears that on
Page 3 of 15

May 3, 2010, Mr. Anderson reported for work at 6:00 a.m. At 9:23 a.m. a breathalyzer test was
administered to Mr. Anderson that showed his blood alcohol content was 0.015%. On the same day
that Mr. Anderson failed his breathalyzer test, three other District employees failed random drug and
alcohol tests and received letters informing them that, were they to commit any further violations of
the terms of their employment with respect to drugs and alcohol, they would be terminated.
However, unlike in Mr. Anderson’s case, for the three other employees who failed drug and alcohol
tests on May 3, the offenses at issue were their first. On June 30, 2010, a disciplinary hearing with
respect to Mr. Anderson was conducted by the Board’s personnel committee. On July 12, 2010, the
Board terminated Mr. Anderson’s employment. On July 13, 2010, Mr. Anderson was notified by
letter of his termination.
On February 4, 2011, Mr. Anderson filed this lawsuit, alleging that his termination had been
in retaliation for criticisms of the District’s facilities and the Board by his wife. It appears that on
October 28 and October 29, 2010, Mrs. Anderson photographed various facilities of the District.
At approximately the same time that Mrs. Anderson photographed District facilities, she complained
to certain District employees, namely, Arnett Harvey and Dr. Tony Brooks, the principal of Wirth
School of Choice, about the condition of the District’s facilities. Mrs. Anderson claims that during
her October 2009 communication with Harvey, she urged that various District administrators and
employees of the District’s central office be terminated. In November 2009, Mrs. Anderson met
with Dr. Brooks and advised him that she did not intend to pursue further the complaints about the
District’s facilities that she had raised. It appears that Mrs. Anderson never communicated her
complaints about the District’s facilities to the members of the Board and that Mrs. Anderson has
not criticized the District’s facilities since January 2010. Also, at the time Mr. Anderson was
Page 4 of 15

terminated, he was not told by the Board that his termination was related in any way to
Mrs. Anderson’s criticisms of the District’s facilities.
As an initial matter, the Court notes the standard under which it must evaluate a motion for
summary judgment. Pursuant to Rule 56 of the Federal Rules of Civil Procedure, generally at any
time until thirty days after the close of discovery in a case, “[a] party may move for summary
judgment, identifying each claim or defense – or the part of each claim or defense – on which
summary judgment is sought.” Fed. R. Civ. P. 56(a). The rule provides further that “[t]he court
shall grant summary judgment if the movant shows that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law. The court should state on the record
the reasons for granting or denying the motion.” Id. Under Rule 56, “[a] party asserting that a fact
cannot be . . . genuinely disputed must support the assertion by . . . citing to particular parts of
materials in the record . . . or . . . showing that the materials cited do not establish the . . . presence
of a genuine dispute[.]” Fed. R. Civ. P. 56(c)(1)(A)-(B). The rule provides also that “[t]he
court need consider only the cited materials, but it may consider other materials in the record.”
Fed. R. Civ. P. 56(c)(3). With respect to affidavits and declarations, the rule provides that “[a]n
affidavit or declaration used to support or oppose a motion must be made on personal knowledge,
set out facts that would be admissible in evidence, and show that the affiant or declarant is competent
to testify on the matters stated.” Fed. R. Civ. P. 56(c)(4).
In responding to a summary judgment motion, the non-moving 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. See Johnson v. City of Fort Wayne, Ind., 91 F.3d 922, 931
(7th Cir. 1996); Midwest Imports, Ltd. v. Coval, 71 F.3d 1311, 1317 (7th Cir. 1995). A genuine
Page 5 of 15

issue of material fact is not demonstrated by the mere existence of some alleged factual dispute
between the parties or by some metaphysical doubt as to the material facts. See Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); Weeks v. Samsung Heavy Indus.
Co., 126 F.3d 926, 933 (7th Cir. 1997). Rather, a genuine issue of material fact exists only if a
fair-minded jury could return a verdict for the non-moving party on the evidence presented. See
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986); Michas v. Health Cost Controls of Ill.,
Inc., 209 F.3d 687, 692 (7th Cir. 2000). In considering a summary judgment motion, a court must
draw all reasonable inferences in the light most favorable to the non-moving party. See Miller v.
Herman, 600 F.3d 726, 733 (7th Cir. 2010). On summary judgment a court may not make credibility
determinations or weigh the evidence, because these are tasks for a factfinder. See O’Leary v.
Accretive Health, Inc., 657 F.3d 625, 630 (7th Cir. 2011); Morfin v. City of E. Chicago, 349 F.3d
989, 999 (7th Cir. 2003). In evaluating a motion for summary judgment, “the court has one task and
one task only:

to decide, based on the evidence of record, whether there is any material

dispute of fact that requires a trial.” Payne v. Pauley, 337 F.3d 767, 770 (7th Cir. 2003) (quoting
Waldridge v. American Hoechst Corp., 24 F.3d 918, 920 (7th Cir. 1994)) (brackets omitted).
With the foregoing standard in mind, the Court turns to consideration of the instant summary
judgment motion.
“It is by now well established that the government may not arbitrarily silence the
constitutionally-protected speech of its employees. Government workers do not forfeit their
First Amendment rights simply by accepting public sector employment.”

Wernsing v.

Thompson, 423 F.3d 732, 750 (7th Cir. 2005). To show unlawful retaliation for constitutionally
protected speech or conduct, a plaintiff must prove three elements: first, that he or she engaged in
Page 6 of 15

constitutionally protected speech or conduct; second, that but for the protected speech or conduct a
defendant would not have taken an adverse action against the plaintiff; and third, that the plaintiff
suffered a deprivation because of the defendant’s action. See Gross v. Town of Cicero, Ill., 619 F.3d
697, 704 (7th Cir. 2010); Gunville v. Walker, 583 F.3d 979, 983-84 & n.1 (7th Cir. 2009).1 In order
to determine whether speech is constitutionally protected, a court must engage in a two-part inquiry
known as the “Connick-Pickering test.” See Connick v. Myers, 461 U.S. 138, 144-45 (1983);
Pickering v. Board of Educ. of Twp. High Sch. Dist. 205, Will County, Ill., 391 U.S. 563, 568 (1968);
Sullivan v. Ramirez, 360 F.3d 692, 697 (7th Cir. 2004); Coady v. Steil, 187 F.3d 727, 731
(7th Cir. 1999). Under Connick, a court must determine whether the speech or conduct at issue
addressed a matter of public concern. See Connick, 461 U.S. at 144; Sullivan, 360 F.3d at 698-700.
If the speech or conduct did involve such a concern, then the court, under the Pickering balancing
test, must determine whether the government’s interest as an employer in providing effective and
efficient services outweighs the employee’s interest as a citizen in commenting upon the matter of
public concern.” Pickering, 391 U.S. at 568; Sullivan, 360 F.3d at 700-03. The determination of
whether an employee’s speech is constitutionally protected is a question of law for the court. See
Berg v. Hunter, 854 F.2d 238, 243 (7th Cir. 1988). The Court concludes that Mrs. Anderson’s
speech regarding the condition of District facilities, for which Mr. Anderson claims he was
terminated, was protected speech.

1. The Court recognizes that in cases involving an alleged prior restraint on speech or conduct
protected by the First Amendment, it may be misleading to speak of “retaliation,” because an
infringement of First Amendment rights occurs when a governmental actor deters future protected
activity as well as when the actor punishes past speech. See Fairley v. Andrews, 578 F.3d 518, 525
(7th Cir. 2009). In this case, however, there is no claim that the Board threatened to punish
Mr. Anderson if he or his wife engaged in protected conduct in the future, and
therefore the Court will characterize this suit as one for “retaliation.”
Page 7 of 15

This Circuit recognizes a claim for relief where an individual has been retaliated against for
statements made by a third person. See, e.g., EEOC v. V & J Foods, Inc., 507 F.3d 575, 580-81
(7th Cir. 2007); Drake v. Minnesota Mining & Mfg. Co., 134 F.3d 878, 886 (7th Cir. 1998);
McDonnell v. Cisneros, 84 F.3d 256, 262 (7th Cir. 1996).2 However, in the past controlling

2. The Court notes that, to the extent Mr. Anderson is attempting to frame his claim for relief as
one for a violation of his First Amendment right of intimate association, Mr. Anderson’s position
is not well-founded. American law “has long recognized that, because the Bill of Rights is designed
to secure individual liberty, it must afford the formation and preservation of certain kinds of highly
personal relationships a substantial measure of sanctuary from unjustified interference by the State.”
Roberts v. United States Jaycees, 468 U.S. 609, 618 (1984). “Without precisely identifying every
consideration that may underlie this type of constitutional protection, . . . certain kinds of personal
bonds have played a critical role in the culture and traditions of the Nation by cultivating and
transmitting shared ideals and beliefs; they thereby foster diversity and act as critical buffers between
the individual and the power of the State.” Id. at 618-19. Importantly,
Family relationships, by their nature, involve deep attachments and commitments to
the necessarily few other individuals with whom one shares not only a special
community of thoughts, experiences, and beliefs but also distinctively personal
aspects of one’s life. Among other things, therefore, they are distinguished by such
attributes as relative smallness, a high degree of selectivity in decisions to begin and
maintain the affiliation, and seclusion from others in critical aspects of the
relationship. As a general matter, only relationships with these sorts of qualities are
likely to reflect the considerations that have led to an understanding of freedom of
association as an intrinsic element of personal liberty. Conversely, an association
lacking these qualities – such as a large business enterprise – seems remote from the
concerns giving rise to this constitutional protection. Accordingly, the Constitution
undoubtedly imposes constraints on the State’s power to control the selection of one’s
spouse that would not apply to regulations affecting the choice of one’s fellow
employees.
Id. at 619-20 (citations omitted). See also Board of Dirs. of Rotary Int’l v. Rotary Club of
Duarte, 481 U.S. 537, 546 (1987) (in evaluating a claim for interference with the right of intimate
association, a court consider factors such as “size, purpose, selectivity, and whether others are
excluded from critical aspects of the relationship.”). Thus, a plaintiff claiming a violation of the
right of intimate association must show that “she suffered [an adverse employment action] because
she exercised her right to be married or to stay married to [her spouse].” Anderson-Free v.
Steptoe, 970 F. Supp. 945, 957 (M.D. Ala. 1997) (emphasis in original). Here, as will be discussed
presently, Mr. Anderson cannot show that his wife’s criticisms of the District were the cause, much
less the but-for cause, of Mr. Anderson’s termination.
Page 8 of 15

authority in this Circuit did not require but-for causation in a case involving alleged retaliation for
the exercise of First Amendment rights. See, e.g., Hasan v. United States Dep’t of Labor, 400 F.3d
1001, 1005 (7th Cir. 2005) (quoting Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S.
274, 287 (1977)) (“[A] plaintiff who complains that he was retaliated against for exercising his right
of free speech need not prove that, had it not been for that exercise, the adverse . . . action that he is
charging as retaliation would not have occurred. All he need prove is that his speech was a
‘motivating factor’ in the [defendant’s] decision to take the adverse action.”). The Supreme Court
of the United States clarified recently that, unless a federal statute provides otherwise, the plaintiff
bears the burden of demonstrating but-for causation in suits brought under federal law. See Gross v.
FBL Fin. Servs., Inc., 129 S. Ct. 2343, 2351 (2009) (to prevail in an action under the Age
Discrimination in Employment Act, 29 U.S.C. § 621 et seq., “[a] plaintiff must prove by a
preponderance of the evidence (which may be direct or circumstantial), that [an unlawful motive]
was the ‘but-for’ cause of the challenged . . . decision.”); Waters v. City of Chicago, 580 F.3d
575, 584 (7th Cir. 2009) (“[T]he decisions which say that a plaintiff need only prove
that his speech was a motivating factor in the defendant’s decision [to retaliate] do not
survive Gross[.]”).
This Circuit’s pre-Gross decisions held that, in cases where direct evidence of retaliation is
lacking, once a prima facie case of retaliation has been made, the burden shifts to the defendant to
articulate a legitimate, non-retaliatory reason for a challenged act, consistent with the burden-shifting
analysis of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), used in employment
discrimination cases under the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.
See, e.g., Spiegla v. Hull, 371 F.3d 928, 943 n.10 (7th Cir. 2004) (quoting Johnson v. University of
Page 9 of 15

Wis.-Eau Claire, 70 F.3d 469, 482 (7th Cir. 1995)) (“[I]n this Circuit ‘the causation analysis for a
[42 U.S.C.] § 1983 retaliation claim tracks the causation analysis for a Title VII retaliation claim.’”).
However, the United States Court of Appeals for the Seventh Circuit noted recently, “[w]hether such
a burden shifting analysis survives the Supreme Court’s declaration in Gross in non-Title VII cases,
remains to be seen.”

Kodish v. Oakbrook Terrace Fire Prot. Dist., 604 F.3d 490, 501

(7th Cir. 2010). Some trial courts in this Circuit have taken this statement from Kodish to mean that,
after Gross, the indirect method of proof cannot be used in retaliation cases. See, e.g., Zitzka v.
Village of Westmont, 743 F. Supp. 2d 887, 915 n.11 (N.D. Ill. 2010) (“We share in the Seventh
Circuit’s skepticism as to whether the burden-shifting approach retains vitality after Gross, because
the evidence needed to make out a prima facie case of but-for causation under the direct method will
be the same evidence a plaintiff would use to show that a defendant’s stated reasons were merely a
pretext for the adverse action taken against the plaintiff under the indirect, burden-shifting
method.”); King v. Schieferdecker, No. 08-3213, 2011 WL 3273167, at *14 (C.D. Ill. Aug. 1, 2011)
(quoting Kodish, 604 F.3d at 501) (“The Seventh Circuit has also held that whether the indirect,
burden shifting analysis continues to apply in non-Title VII cases ‘remains to be seen.’”). See also
Davis v. Harris, No. 03-3007, 2006 WL 3321630, at *26 (C.D. Ill. Nov. 14, 2006)
(“First Amendment retaliation cannot be established by the indirect method. As such, [a plaintiff]
must have some direct evidence of a causal connection between [protected speech or conduct] and
[an adverse employment action].”).
Recent decisions of the Seventh Circuit Court of Appeals indicate that the burden-shifting
method of McDonnell Douglas survives in First Amendment retaliation cases after Gross. Thus, if
a plaintiff makes out the prima facie case of First Amendment retaliation, the burden shifts to the
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defendant to show that the same decision would have been made in the absence of the protected
speech. “Once a plaintiff demonstrates that an improper purpose was a motivating factor [for an
adverse employment decision], the burden shifts to the defendant to show that the same decision
would have been made in the absence of the protected speech. If the defendant carries that burden,
the plaintiff must then demonstrate that the defendant’s proffered reasons for the decision were
pretextual and that retaliatory animus was the real reason for the decision.” Zellner v. Herrick, 639
F.3d 371, 379 (7th Cir. 2011) (citing Massey v. Johnson, 457 F.3d 711, 717 (7th Cir. 2006)).
“At the summary judgment stage, this means a plaintiff must produce evidence upon which a rational
finder of fact could infer that the defendant’s proffered reason [for an adverse employment action]
is a lie.” Id. (citing Vukadinovich v. Board of Sch. Trs. of N. Newton Sch. Corp., 278 F.3d 693, 699
(7th Cir. 2002)). See also Greene v. Doruff, 660 F.3d 975, 980 (7th Cir. 2011) (if a plaintiff shows
“a violation of his rights was a sufficient condition of the harm for which he seeks redress” the
defendant may “rebut with evidence that the plaintiff’s exercise of his constitutional rights though
a sufficient condition was not a necessary condition” of the harm or, in other words, the defendant
must show that the disciplinary action would have occurred anyway). A plaintiff can show pretext
either (1) directly, with evidence showing that “retaliation was the most likely motive for terminating
him,” or (2) indirectly, by showing that a defendant’s “proffered justifications were not worthy of
credence.” Vukadinovich, 278 F.3d at 699-700. To show that the proffered justification was not
worthy of credence, a plaintiff must show that the defendant’s justification had no basis in fact,
was not the real reason for the adverse action, or was insufficient to warrant the adverse action.
See id. at 700. Said differently, the plaintiff must demonstrate that the proffered reasons are,
in fact, a lie. See id.
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Tuning then to the merits of Mr. Anderson’s retaliation claim, the Court finds many defects
in the claim. First, circumstantial evidence of an employer’s retaliatory motive, such as the timing
of events or the disparate treatment of similar individuals, can sustain a claim of retaliation. See
Boumehdi v. Plastag Holdings, LLC, 489 F.3d 781, 792 (7th Cir. 2007) (citing Troupe v. May Dep’t
Stores Co., 20 F.3d 734, 736 (7th Cir. 1994)) (circumstantial evidence of retaliation includes
“suspicious timing, ambiguous statements, behavior toward or comments directed at other employees
in the protected group, and other bits and pieces from which an inference of discriminatory intent
might be drawn.”). However, “suspicious timing alone rarely is sufficient to create a triable issue”
of material fact in support of a retaliation claim at the summary judgment stage. See Moser v.
Indiana Dep’t of Corr., 406 F.3d 895, 905 (7th Cir. 2005). Evidence that Mrs. Anderson last
criticized the District in January 2010, while her husband was not terminated until
approximately

seven

months

later,

is

insufficient

to

create

an

inference

that

Mr. Anderson’s termination was in retaliation for his wife’s speech. See Hughes v. Derwinski, 967
F.2d 1168, 1174-75 (7th Cir. 1992) (the temporal proximity of an employee’s filing of a formal
discrimination complaint and the issuance of disciplinary letters, standing by itself, did not
sufficiently raise an inference of a causal connection between the employee’s protected expression
and the adverse action for purposes of the employee’s retaliation claim; four months elapsed between
the employee’s filing and his receipt of the first disciplinary letter, and more than three years passed
before the employee’s receipt of the second letter); Antonson v. United Armored Servs., Inc.,
No. 00 C 4095, 2002 WL 221605, at *3 (N.D. Ill. Feb. 12, 2002) (“Given that four months passed
between the protected expression and the failure to promote, and that Antonson provides no
additional proof tending to establish a causal nexus between the two events, he has failed to establish
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a prima facie case of retaliatory failure to promote.”). Second, Mrs. Anderson concedes that she
never voiced her criticisms of the District’s facilities to any member of the Board. However,
“[i]n order to establish that a defendant retaliated against a plaintiff because of a protected
constitutional right, a plaintiff must demonstrate that the defendant knew of . . . the plaintiff’s
constitutional[ly protected] activities.” Stagman v. Ryan, 176 F.3d 986, 999 (7th Cir. 1999).
Accordingly, where there is no proof that a decision-maker responsible for an adverse action
against a plaintiff was aware of any protected activity on the plaintiff’s part, a retaliation claim
must fail.

See, e.g., Cusson-Cobb v. O’Lessker, 953 F.2d 1079, 1081-82 (7th Cir. 1992)

(affirming the dismissal of a claim by a former employee of a state utility commission who alleged
that the new chairman of the commission discharged her in retaliation for her political affiliation
where the former employee produced no evidence that the chairman was aware of the former
employee’s political affiliation).3

3. To the extent Mr. Anderson relies upon a so-called “cat’s paw” theory of liability, whereby the
Board is liable for an unbiased adverse employment action instigated by the impermissible bias of
a non-decisionmaking co-worker, namely Dr. Pam Manning, whose appointment as a
District superintendent Mrs. Anderson supposedly opposed, this theory fails. First, “the cat’s paw
theory is largely confined to cases involving Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§ 2000e, et seq.” Beatty v. Olin Corp., No. 09-cv-795-JPG-SCW, 2011 WL 2712731, at *4
(S.D. Ill. July 13, 2011). Second, the cat’s paw theory applies only “where the party nominally
responsible for a decision is, by virtue of [the decision-maker’s] role in the company, totally
dependent on another employee to supply the information on which to base that decision.” Brewer v.
Board of Trs. of Univ. of Ill., 479 F.3d 908, 918 (7th Cir. 2007). However, “‘where a decision
maker is not wholly dependent on a single source of information, but instead conducts its own
investigation into the facts relevant to the decision, the employer is not liable for an employee's
submission of misinformation to the decision maker.’” Metzger v. Illinois State Police, 519 F.3d
677, 682 (7th Cir. 2008) (quoting Brewer, 479 F.3d at 918). In this case, in terminating
Mr. Anderson the Board did not solely on information furnished by Manning and instead, as
discussed, relied upon evidence developed at a disciplinary hearing conducted by the Board’s
personnel committee, which fully investigated Mr. Anderson’s job performance and disciplinary
history during his employment with the District. As such, this Court cannot conclude that the Board
was merely Manning’s cat’s paw.
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Finally, Mr. Anderson has failed to show that retaliation was the “but-for” cause of his
termination. Mr. Anderson does not deny that he repeatedly failed random drug and alcohol tests,
in violation of the CBA between the Board and Mr. Anderson’s Union and the District’s “Drug and
Alcohol-Free Workplace Policy.” Similarly, Mr. Anderson does not deny that he could have been
terminated for any of his three violations of the rules governing his employment concerning use of
drugs and alcohol at the workplace or being under the influence of drugs or alcohol at the workplace,
and he concedes that in fact he was disciplined more leniently than other District employees who
committed similar infractions. In sum, Mr. Anderson cannot show that the reason for his termination
was pretextual or that his proposed reason for his termination, his wife’s criticism of the District’s
school facilities, was the but-for cause of his termination. “[T]he plain language of [Rule 56]
mandates the entry of summary judgment, after adequate time for discovery and upon motion,
against a party who 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.” Celotex
Corp. v. Catrett, 477 U.S. 317, 322 (1986). “In such a situation, there can be no genuine issue as
to any material fact, since a complete failure of proof concerning an essential element of the
nonmoving party’s case necessarily renders all other facts immaterial. The moving party is entitled
to a judgment as a matter of law because the nonmoving party has failed to make a sufficient
showing on an essential element of her case with respect to which she has the burden of proof.” Id.
at 322-23 (quotation omitted).

See also Green v. Whiteco Indus., Inc., 17 F.3d 199, 201

(7th Cir. 1994) (quoting Celotex Corp., 477 U.S. at 325) (“On a motion for summary judgment,
the moving party has the burden of demonstrating that there are no genuine questions of material
fact and that he is entitled to judgment as a matter of law. This burden ‘may be discharged by
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‘showing’ – that is, pointing out to the district court – that there is an absence of evidence to support
the nonmoving party’s case.”) (citation omitted). Here, the record discloses no evidence to support
a reasonable inference of but-for causation as to Mr. Anderson’s retaliation claim, and therefore the
claim will be dismissed.
To conclude, the Board’s motion for summary judgment (Doc. 36) is GRANTED, and this
action is DISMISSED with prejudice. All other pending motions in this case (Doc. 49, Doc. 51,
Doc. 53, Doc. 55, Doc. 56, Doc. 59, and Doc. 61) are DENIED as moot. The Clerk of Court will
enter judgment in accordance with this Order.
IT IS SO ORDERED.
DATED: February 14, 2012

/s/ G. Patrick Murphy
G. PATRICK MURPHY
United States District Judge

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