Dalton v. Mount Vernon Township High School

Filing 52

ORDER: For the reasons stated in the attached memorandum and order, the Board's motion for summary judgment (Doc. 38 ) is GRANTED IN PART and DENIED IN PART. Summary judgment is granted in favor of the Board as to Dalton's discrimination claims, but denied as to Dalton's retaliation claim. See attached memorandum and order for details. Signed by Chief Judge Michael J. Reagan on 2/11/2016. (wtw)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JOYCE DALTON,
Plaintiff,
vs.
BOARD OF EDUCATION FOR,
MOUNT VERNON TOWNSHIP
HIGH SCHOOL DISTRICT 201,
Defendant.

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Case No. 14-cv-1160-MJR-PMF

MEMORANDUM AND ORDER
REAGAN, Chief District Judge:
Joyce Dalton began working as an assistant principal at the Mt. Vernon
Township High School in August 2010. In March 2013, Dalton resigned, purportedly
because the superintendent told her that if she didn’t resign she would be terminated
by the Board at its upcoming hearing and face other repercussions linked to a
discrimination charge she started with the Equal Employment Opportunity
Commission. In 2014, Ingram filed suit against Mt. Vernon Township High School in
this Court, claiming that the school discriminated against her based on her race and
gender and retaliated against her for filing a charge with the Commission. The Board
has now moved for summary judgment on all of Dalton’s claims, arguing that she has
insufficient evidence to make out a discrimination or retaliation claim. For the reasons
stated below, the Board’s motion is granted in part and denied in part.

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Background
Dalton, an African American female, was hired in August 2010 by the Board to
serve as the Assistant Principal for Attendance, Student Discipline, and Campus
Supervision at the Mt. Vernon Township High School. Dalton remained at Mt. Vernon
until her resignation in March 2013. Dalton was one of five assistant principals working
at the high school—the school assigned each assistant principal to various areas, with
Dalton responsible for security, attendance, discipline, and other related matters. When
Dalton first began working at the school, Dalton’s supervisor was Principal Ron
Daniels, but that changed in July 2011, when Daniels departed and Wesley Olson was
hired to serve as principal in his stead. Daniels and Olson reported to the district
superintendent, Dr. Michael Smith, throughout Dalton’s tenure.
The circumstances (and motivators) of Dalton’s departure depend upon who you
ask. The Board flags a number of problems with Dalton’s job performance at the school,
one localized to 2010 and many occurring after Principal Olson’s arrival in 2011. When
Dalton began working at the school in 2010, she interpreted the dress code to mean that
camouflage was prohibited because it could be viewed as a gang symbol—and based on
that interpretation she sent students home from school to change into more appropriate
attire. That interpretation didn’t fly well with parents and students in southern Illinois,
and parent complaints drew community and local media attention. The complaints led
the superintendent to discuss the matter with Dalton and advise her that, while she was
to use her judgment in enforcing the high school’s dress code, she should be careful
about creating a gang problem where no known problem existed.
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The Board claims that Dalton’s problems continued after Principal Olson was
hired in July 2011. Olson received some additional complaints related to Dalton’s
interaction with students and parents in 2011: he investigated them, allegedly spoke to
Dalton about them, and set some of them aside as frivolous. That said, he determined
that others—namely a few complaints linked to Dalton’s communication with parents
and one complaint linked to a physical altercation with a student—had merit.
The Board says that the complaints about Dalton continued into the 2012 to 2013
school year, reaching an apex when Dalton approached a school board member and the
school’s resource officer to get out of a traffic ticket she received in mid-2012. All
involved dispute large portions of Dalton’s contact with officials concerning the ticket:
Hawkins testified that Dalton offered him $100 to get her out of the ticket; Dalton
admits that she approached him but characterized the bribe as a joke; Olson suggests
that he regarded the event as bad judgment but admits that the bribe could have been a
joke; and the superintendent says that he took Dalton’s exchanges with Hawkins and
the board member very seriously, characterizing her discussions as poor judgment.
For her part, Dalton says that the complaints against her were largely
groundless, and that she was exposed to discrimination based on her gender and race
since Olson took over as principal. She claims that Olson made constant comments
from 2012 onward that he wanted a male in the attendance office: in April 2012, he said
that the male coach of the football team should be moved to that office; and in
November 2012, he said that the female attendance clerk should be moved to another
position because they needed a man in that office. Dalton also says that Olson often
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referred to African Americans as “you people” when speaking with Dalton—he
referred to African Americans as “you people” when Dalton complained about a
secretary’s treatment of an African American student, and he would refer to African
American students as “you people” when discussing them generally with Dalton
Olson’s comments were not the only thing Dalton found objectionable—she also
claims that she was treated differently than other assistant principals by Olson and
other officials throughout her tenure at Mt. Vernon High School. For one, a video
camera was installed in Dalton’s office but no one else’s in 2012. When Dalton asked
why the camera was installed, Olson laughed and told her that she was a “tough one,”
and the superintendent told her that the camera was for her safety because she dealt
primarily with discipline issues. Dalton found that explanation curious, given that
other employees often dealt with student discipline but didn’t have cameras installed in
their offices or duty stations. In addition, Dalton claims that Olson reassigned many of
her responsibilities and often overturned her decisions—something he didn’t do to
other principals. Once more, Dalton claims that Olson and possibly others denied her
core competency training that other assistant principals received.
On November 19, 2012, Principal Olson sent the superintendent a memo
documenting Dalton’s purported deficiencies, including problems related to Dalton’s
timeliness, her availability, her communications with parents and students, and other
matters. Dalton says she challenged the bona fides of that letter and asked to speak to
the Board, but she was rebuffed, and the Board took that information into account when
it decided to give all other assistant principals pay increases but her.
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In February 2013, the superintendent prepared a summative performance
evaluation for Dalton, receiving input along the way from Olson and other assistant
principals. The superintendent gave the report to Dalton sometime in February 2013—
precisely when the parties seem to dispute—and told her that he would recommend to
the Board that her contract not be renewed for the following year. After she received
the evaluation, Dalton allegedly contacted the superintendent, again challenged the
accuracy of the statements in the evaluation, and claimed that Principal Olson was
targeting her for discriminatory reasons. Dalton also contacted the Equal Employment
Opportunity Commission and filled out a charge questionnaire. On February 27, 2013,
Dalton followed up by submitting a letter to the superintendent, telling him that she
would present her evidence to the Board at its March 2013 meeting and would request
resignation in lieu of termination if the Board decided to terminate her.

The

superintendent told her it would be a waste of time to go to the Board, but if she
resigned and spared all the trouble, he would help her find other employment.
On the same day that Dalton submitted her follow-up letter, the Equal
Employment Opportunity Commission sent a notice of charge of discrimination to the
school, seemingly prompted by Dalton’s February 2013 charge questionnaire.
According to Dalton, that led Smith to meet with her on March 7, 2013: he confronted
her regarding her agency charge; told her that because she had filed the charge he could
no longer accept her provisional February 27, 2013 letter of resignation; explained that
he would prepare a letter of resignation that Dalton must sign before the Board meeting
instead if she wanted to resign; and told her that pursuing the charge with the
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Commission would hurt her career given his contacts in southern Illinois.

Dalton

received the letter allegedly prepared by the superintendent on March 15, 2013, and
signed it.

That same day, she submitted her finalized charge to the Commission.

Dalton was ultimately replaced by Rowdy Fatheree, a Caucasian male.
On July 29, 2014, the Commission sent Dalton a right to sue letter, telling her that
it was unable to determine whether there was a violation. Dalton then filed a complaint
against Mt. Vernon High School in federal court, alleging race discrimination, gender
discrimination, and retaliation pursuant to Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000, and the Civil Rights Act of 1866, 42 U.S.C. § 1981. She amended the
complaint once to name the Board of Education for Mt. Vernon instead of the high
school. Discovery has concluded and the Board has moved for summary judgment,
claiming that Dalton has no actionable discrimination or retaliation claims.
Discussion
This case presents a thicket of motions: the Board has moved to dismiss the
amended complaint, has moved for summary judgment, and has moved to strike a
declaration that Dalton attached to her response to the Board’s motion for summary
judgment. The Court granted in part and denied in part the Board’s motion to dismiss:
the Court ruled that Dalton’s § 1981 claims should be dismissed for want of custom or
policy allegations directed at the Board, but that Dalton’s amended complaint was
timely and that an exhaustion dismissal was not appropriate at the motion to dismiss
stage (largely due to the imprecision of the Board’s arguments). The Court also denied
the Board’s motion to strike, finding that the supplemental declaration didn’t squarely
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contradict Dalton’s deposition testimony and that the letter sought to be stricken, which
wasn’t disclosed by Dalton during the course of discovery, was likely in the Board’s
possession before the case even started.

With those points disposed of, the only

remaining motion is the Board’s request for summary judgment, which primarily takes
issue with the merits of Dalton’s Title VII retaliation and discrimination claims.
Summary judgment is proper on one or more of a party’s claims if the evidence
shows that there is no genuine issue as to any material fact and the movant is entitled to
judgment as a matter of law. Archdiocese of Milwaukee v. Doe, 743 F.3d 1101, 1105 (7th
Cir. 2014). In evaluating whether there is a genuine issue as to a material fact, the Court
must construe the facts in the light most favorable to the non-movant, and draw all
legitimate inferences and resolve doubts in favor of that party.

Nat’l Athletic

Sportswear, Inc., 528 F.3d 508, 512 (7th Cir. 2008). If after doing so no reasonable jury
could find for the non-movant on his claim, summary judgment on that claim is proper;
if the jury could find for the non-movant on that claim, it must proceed. Dempsey v.
Atchison, Topeka, & Santa Fe Ry. Co., 16 F.3d 832, 836 (7th Cir. 1994).
Dalton’s first claim for relief, at least as narrowed by her responses to the Board’s
motion for summary judgment, is that the Board discriminated against her by denying
her training provided to other employees at the high school. The Board maintains that
the training claim can’t make it to trial because Dalton hasn’t offered evidence showing
that the denial of training had a material impact on her job, and its criticisms are well
taken.

It’s important to remember that Title VII doesn’t forbid every act of

discrimination that an employer might visit on an employee—the action must be “with
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respect to [the employee’s] compensation, terms, conditions, or privileges of
employment.” 42 U.S.C. § 2000e-2(a)(1). In other words, whatever is done to the
employee must rise to the level of a “tangible employment action” or must qualify as
“materially adverse,” lest Title VII render all dirty looks from an employer grist for a
federal case. Herrnreiter v. Chi. Housing Authority, 315 F.3d 742, 744 (7th Cir 2002).
The “material” or” “tangible” requirement in the statute means that a denial of
training, in and of itself, is not actionable under Title VII. The denial must, as the cases
say, “tend to affect” one’s employment status or benefits, Shackelford v. Deloitte &
Touche, LLP, 190 F.3d 398, 407 (5th Cir. 1999); or cause “material harm” to an
employee’s opportunities for growth or advancement, Hill v. Rayboy-Brauestein, 467 F.
Supp. 2d 336, 352 (S.D.N.Y. 2006). The Board argued that Dalton had no proof that the
alleged denial of core training had any impact on her career potential in its motion for
summary judgment, and Dalton’s response merely reasserted that she was denied
training—she offered no evidence or argument whatsoever to show that the denial of
training affected her employment or caused material harm to her job.

Summary

judgment is the “put up or shut up” moment of litigation, Johnson v. Cambridge
Industries, Inc., 325 F.3d 892, 901 (7th Cir. 2003), and Dalton’s silence on the training
claim speaks volumes. Because there’s no indication that the denial of training rose to
the level of an adverse action, judgment on the training claim is proper.
Dalton’s next claim is that her resignation was actually a constructive discharge,
and one motivated by discriminatory animus. The term “constructive discharge” refers
to the situation in which an employer, without firing an employee, makes his working
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conditions so miserable that he is driven to quit. Hunt v. City of Markham, Ill., 219
F.3d 649, 655 (7th Cir. 2000). Misery, at least of the actionable variety, can come in two
forms—it can exist when an employee is exposed to egregious harassment, or it can
exist when an employer’s actions communicate to the employee that she will be
terminated. Chapin v. Fort-Rohr Motors, Inc., 621 F.3d 673, 679 (7th Cir. 2010). Dalton
makes no argument about the first type but says her case falls into the second,
“termination is certain” category.

That category has its limits, though—there’s no

constructive discharge without some indication that the potential discharge was
imminent and unavoidable. Wright v. Ill. Dep’t of Children & Family Servs., 798 F.3d
513, 528-29 (7th Cir. 2015). In other words, the axe must come quick and must be
certain to fall; if it might not come because of the uncertainty of time or because of
review by another, an employee should wait to see how things turn out before leaving
on her own and using litigation to determine what would have happened. Wright, 798
F.3d at 529; Lindale v. Tokheim Corp., 145 F.3d 953, 956 (7th Cir. 1998).
Dalton says that she was constructively discharged because the superintendent
told her, after she filed her agency charge, that she could sign a new letter of resignation
or be terminated after the Board meeting on March 18, 2013. At that point, though,
Dalton’s termination was far from certain:

the Board may have abided by the

superintendent’s recommendation and terminated Dalton or refused to renew her
contract, or it may have declined the superintendent’s invitation and kept her around.
It’s of no moment that the Board typically abided by the superintendent’s
recommendations; what matters, for purposes of a claim of constructive discharge, is
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that the Board had the ultimate authority, and that it could have gone the other way.
Cigan v. Chippewa Falls Sch. Dist., 388 F.3d 331, 333 (7th Cir. 2004). Because the
“prospect of being fired at the conclusion of an extended process is not itself a
constructive discharge,” Dalton’s constructive discharge theory must fail. Id. at 334.
Even if the circumstances surrounding Dalton’s March 2013 resignation
somehow qualified as a materially adverse action for a discrimination claim, Dalton
would still need to offer some evidence that the resignation was linked to
discriminatory animus. Henry v. Milwaukee County, 539 F.3d 573, 587 (7th Cir. 2008).
All of Dalton’s evidence of discrimination relates to actions by Principal Olson, which
occurred in 2012 and seemingly have nothing to do with the March 2013 pressed
resignation. It is true, of course, that the animus of an intermediate can be ported to the
decisionmaker when the intermediate proximately caused the adverse act.

But

proximate cause doesn’t exist in all cases where an intermediate is present—for the
animus of an underling to be imputed to one higher up on the food chain, there must be
some direct relationship between the injury asserted and the injurious conduct alleged
that is neither too remote, purely contingent, or indirect. Staub v. Proctor Hosp., 562
U.S. 411, 419-20 (2011). In other words, if the underling with animus had no influence
on the ultimate adverse action, the underling’s animus wouldn’t be ported to the
decisionmaker. See, e.g., Woods v. City of Berwyn, 803 F.3d 865, 870 (7th Cir. 2015)
(“[A] determination apart from the biased subordinate’s recommendation can break
the chain of causation.”); Harris v. Warrick Cnty. Sheriff’s Dep’t, 666 F.3d 444, 448 (7th
Cir. 2012) (no animus imputation where there was nothing to link inappropriate
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comments to the ultimate “termination” of “probationary employment”); Nichols v.
Michigan City Plant Dep’t, 755 F.3d 594, 604 (7th Cir. 2014) (statements that showed
that the termination “had nothing to do” with the recommendations of the party with
animus meant that the animus was “not a proximate cause” of the adverse act).
There’s nothing to suggest that Principal Olson had any influence on the
superintendent’s alleged decision to press Dalton’s resignation in March 2013. Maybe
proximate cause would exist if Dalton presented her claim to the Board or if she was
coerced into resigning during her initial meeting with the superintendent in February to
discuss the summative evaluation; in other words, maybe the principal’s animus—
which could have fed into the December 2012 summative evaluation that the Board
would consider at its March 2013 hearing or that was the subject of the superintendent’s
first meeting with Dalton—could be linked to Board termination or a February coerced
resignation. By Dalton’s own account, though, neither of those events happened. The
Board never considered the evaluation, and the superintendent didn’t force Dalton into
resigning or make any actionable threats against her until after she filed her agency
charge. During the period preceding the charge, the superintendent told Dalton that
she could take her chances with the Board and contest the evaluation, and only after
Dalton filed her charge did he change his tune and press her resignation.

That

timeline—along with the superintendent’s alleged statements tying his threats directly
to Dalton’s charge—mean that no reasonable jury could find that Olson’s animus had
anything to do with the superintendent’s actions. See, e.g., Hoppe v. Lewis University,
692 F.3d 833, 842 n.2 (7th Cir. 2012) (animus would not be imputed where there was
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“no evidence” that party with animus “persuaded” decisionmaker to perform the
adverse act); Palermo v. Clinton, 457 F. App’x 577, 580 (7th Cir. 2012) (no imputation
where improper actions had no “relationship to the adverse employment action”).
There being no discharge or link to discriminatory animus, the Board claims
victory, and says the case should be dismissed. That’s too hasty. When the Court views
the record in the light most favorable to Dalton and takes all reasonable inferences in
her favor, Dalton seems to claim that the superintendent was going to allow her to
resign even if the Board found against her, told her that resignation after Board action
was no longer an option after she filed her charge, allegedly tied that stick to her charge,
and for good measure implied that he would poison her reputation if she pressed
forward with her charge with the Equal Employment Opportunity Commission. A jury
could find that these threats had the power to deter a reasonable employee from
making a charge and were causally linked to the charge, and that’s enough to proceed
on a retaliation claim. E.g., Pantoja v. Am. NTN Bearing Mfg., 495 F.3d 840, 849 (7th
Cir. 2007); Beckel v. Wal-Mart Assocs., 301 F.3d 621, 624 (7th Cir. 2002).
The Board seems to have one final argument concerning Dalton’s retaliation
claim. It suggests, by way of reference to “constructive discharge,” that any claim
linked to discharge wasn’t presented in Dalton’s agency charge, and thus isn’t properly
before the Court. This exhaustion argument must be rejected for two reasons. For one,
the Board doesn’t explicitly argue that any retaliation claim is unexhausted—in the only
part of its summary judgment briefing on exhaustion, it references “discrimination,” not
retaliation, as it relates to the events surrounding Dalton’s discharge. Exhaustion isn’t
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jurisdictional, Salas v. Wis. Dep’t of Corrections, 493 F.3d 913, 922 (7th Cir. 2007), so the
onus is on an employer to argue that a particular claim is unexhausted in a developed
fashion in its motion for summary judgment. Because the Board doesn’t argue that the
retaliation claim is unexhausted, the retaliation claim may proceed.
Even if the Court were to construe the Board’s one-paragraph exhaustion
argument in its reply brief to apply to Dalton’s retaliation claim, the exhaustion
argument would fail. The Board is right to point out that Dalton’s resignation wasn’t
explicitly referenced in the agency charge, but at the time that Dalton made her initial
report to the agency, the resignation hadn’t happened yet. Post-charge allegations that
purportedly occurred because the employee started the agency process don’t need to be
exhausted via a new charge. E.g., Luevano v. Wal-Mart Stores, Inc., 722 F.3d 1014, 1030
(7th Cir. 2013); Horton v. Jackson Co. Bd. of County Comm’rs, 343 F.3d 897, 898-99 (7th
Cir. 2003).

That rule is premised on the notion that an employee probably won’t

proceed with a new charge when she’s been stymied by the first; the employer’s threat,
and the possibility of future threats, serve as a strong deterrent to returning to the
Commission.

Malhotra v. Cotter & Co., 885 F.2d 1305, 1312-13 (7th Cir. 1989),

superseded by statute on other grounds as stated in Rush v. McDonalds Corp., 966 F.2d
1104, 1119-20 (7th Cir. 1992). That policy isn’t served much in this case because Dalton
was already terminated by the time she finalized her agency charge—she knew of the
circumstances surrounding the resignation before she signed her charge and the
employer no longer had any direct power over her—but the rule is a general one, and
applies even when the policy isn’t a perfect fit. See id. at 1312. By Johnson’s account,
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the threats occurred because the superintendent learned of her early report to the
Commission, so the retaliation claim is properly before the Court.
Disposition
For the reasons stated above, the Board’s motion for summary judgment (Doc.
38) is GRANTED IN PART and DENIED IN PART. It is GRANTED as to Dalton’s
discrimination claims, and it is DENIED as to Dalton’s retaliation claim.
IT IS SO ORDERED.
DATED: February 11, 2016
/s/ Michael J. Reagan
Chief Judge Michael J. Reagan
United States District Court

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