Welke, Susanne v. Madison Metropolitan School District
Filing
35
ORDER granting 8 Motion for Summary Judgment; denying as moot 30 Motion to Strike. Signed by District Judge William M. Conley on 2/8/2016. (jls)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
SUSANNE RIPPLE WELKE,
Plaintiff,
OPINION AND ORDER
v.
14-cv-693-wmc
MADISON METROPOLITAN SCHOOL
DISTRICT,
Defendant.
Plaintiff Susanne Ripple Welke, a white female born in the United States, claims
that defendant Madison Metropolitan School District (the “District”) discriminated
against her on the basis of race and national origin by favoring native Spanish speakers
for positions assisting students and their parents who are principally Spanish speakers in
violation of Title VI, 42 U.S.C. § 2000d et seq., and Title VII, 42 U.S.C. § 2000e et seq.,
of the Civil Rights Act of 1964. Before the court is defendant’s motion for summary
judgment (dkt. #8), which will be granted in its entirety because there is essentially no
evidence that Ripple Welke was discriminated against and terminated either because of
her race or place of birth.
UNDISPUTED FACTS1
A. Ripple Welke’s Hiring and Part-Time Employment at Toki Middle and
Chávez Elementary Schools
Plaintiff Susanne Ripple Welke is a white female, who was born in the United
States and spoke English as her first language. She began her employment with the
1
Viewing the parties’ submissions in the light most favorable to plaintiff as the non-moving party,
the following facts are material and undisputed for purposes of summary judgment except as
noted.
District as a Spanish-speaking, Bilingual Resource Specialist (“BRS”) on a part-time basis
in 2007, before becoming a full-time BRS in 2008. Her language background before
employment with the District included studying at the University of Wisconsin-Madison,
where she earned her bachelor’s degree in Spanish, travelling and living abroad in
Spanish-speaking countries, and teaching Spanish classes.
Ripple Welke applied for a BRS position with the District in 2007. Spanish BRSs
are not teachers, but rather are tasked with facilitating communication between
English-speaking teachers and administrators on one hand and Spanish-speaking students
and their families on the other. Accordingly, among the central responsibilities of a BRS
is translating oral and written communications in and outside the classroom to facilitate
learning and successful outcomes. Once contacted by the District, applicants for a BRS
position must complete a written translation test, which is then graded and scored.
Provided they exceed a certain score or have other characteristics qualifying them as
potential candidates for the position, applicants then proceed to an interview conducted
in both English and Spanish.
Ripple Welke scored well enough on the written translation test to be referred for
an interview, but the District did not select her for the position after her interview. Amy
Christianson, who was the Assistant Director of English as a Second Language (“ESL”)
and Bilingual Education within the District during the time period relevant to this
lawsuit, marked on Ripple Welke’s “Unsuccessful Candidate Form” that she was not
hired because “other candidates had higher Spanish proficiency.”
2
(Decl. of Amy
Christianson Ex. E (dkt. #16-5).)2 Christianson, however, noted on the form that Ripple
Welke may be a good candidate for limited-term BRS positions.
Around a month after her interview with the District, a position suddenly opened
up for a part-time BRS, who would split time between Toki Middle School and Chávez
Elementary School. Christianson emailed the principals of those schools to inform them
that they could schedule an interview for that position with Ripple Welke or one other
candidate the District had previously interviewed.
Two weeks later, the principals
informed Christianson that they desired to offer Ripple Welke the position.
As a part-time BRS at the two schools during the 2007-2008 school year, Ripple
Welke worked in several different classrooms for several different teachers.
Her
responsibilities included assisting students with understanding classroom lessons,
conversing with Spanish-speaking family members on the phone, translating comments
made on report cards and interpreting for the school nurse.3
B. Ripple Welke’s Transfer from Toki to Midvale Elementary School
At some point during that same school year, the District notified Ripple Welke
that it was going to cut her position at Toki Middle School for the following year. When
2
Although not ultimately material either way, plaintiff purports to dispute this fact on the basis
that there was no “Unsuccessful Candidate Form” in her personnel file. (Pl.’s Resp. PFOF (dkt.
#22) ¶ 40.) Nevertheless, the court will accept defendant’s proposed fact as undisputed given
that: (1) Christianson submitted a declaration authenticating an attached exhibit as a true and
correct copy of the form; and (2) plaintiff gives no reason to doubt that Christianson made the
notes on the form contemporaneously with her interview. See Fed. R. Civ. P. 56(e). On the
contrary, the outcome of the interview itself is wholly consistent with the produced form, since
there is no dispute that Ripple Welke was initially unsuccessful as a candidate for a full-time BRS
position, but recommended as a good candidate for limited-term employment.
3
The parties disagree about the extent to which the District explained her job duties before
Ripple Welke began working as a part-time BRS, but she acknowledges “learn[ing] the BRS duties
by doing the work, asking questions and observing[.]” (Pl.’s Resp. PFOF (dkt. #22) ¶ 56.)
3
a full-time BRS position later became available at Midvale Elementary School, Ripple
Welke submitted a transfer request, as did one other internal candidate. For whatever
reason, Midvale’s then principal, John Burkholder, was never able to schedule an
interview with the other candidate. As the only internal applicant who was interviewed,
therefore, the District was required to approve Ripple Welke’s transfer request under the
terms of its collective bargaining agreement.4
C. Concerns about Ripple Welke’s Spanish Speaking Ability
As opposed to Toki and Chávez, which only had ESL programs, Midvale had both
ESL and Bilingual programs. The parties disagree about the difference in the amount of
instruction provided in English (instead of Spanish) between ESL and Bilingual
programs, but agree that ESL teachers are not required to speak Spanish, while BRSs
generally speak some Spanish in both ESL and Bilingual classrooms. Moreover, in at
least some Bilingual classrooms -- those with students having an English proficiency level
of four or above -- teachers conduct class primarily in English.5 The parties also agree
that Midvale’s bilingual program demanded several bilingual staff members, including
two other full-time BRSs (referred to here as “N.G.” and “D. J.”).
4
Plaintiff objects to this fact by stating that the “District would not be required to transfer a
probationary BRS with inadequate job performance,” but does not contend that the District was
actually aware of any issues with her job performance while she was a part-time BRS at Toki and
Chávez. On the contrary, Ripple Welke asserts that her job performance before transfer was
adequate. (Pl.’s Resp. PFOF (dkt. #22) ¶ 18.) Accordingly, the court will treat this proposed fact
as undisputed as well.
5
For the sake of additional context only, plaintiff attaches a document to her declaration with a
chart from the Wisconsin Department of Public Instruction reflecting six levels of English
proficiency for students who are not native English-speakers, with level six indicating full English
proficiency. (Decl. of Susanne Ripple Welke Ex. N (dkt. #23-14) ECF 7.)
4
When Ripple Welke first arrived at Midvale toward the end of the 2007-2008
school year, she primarily translated report cards. The following school year, however,
Ripple Welke was assigned to several classrooms, all of which, she asserts, had students
with an English proficiency level of four or above and received instruction primarily in
English. Because of their capacity to speak English, Ripple Welke believed that there was
no need for her to use Spanish to help students learn in these classrooms, so she did not
do so.6 In the one bilingual kindergarten classroom for “specials” (meaning subjects such
as art and music) to which she was assigned in particular, Principal Burkholder told
Ripple Welke to use as much English as possible to expose students to more English. In
contrast, Ripple Welke used Spanish in the hallways, cafeteria and playground, as well as
when speaking to parents on the phone.
Not long after Ripple Welke first began working at Midvale, Principal Burkholder
told Assistant Director Christianson that other bilingual staff members at Midvale had
expressed concerns to him about Ripple Welke’s reluctance to engage in conversations in
6
When Ripple Welke was asked during her deposition how she acquired her belief that “there
was no Spanish used” in the academic classrooms to which she was assigned, she simply
responded, “I don’t recall.” (Dep. of Susanne Ripple Welke (dkt. #13-4) 64:6-9.) In her
response brief, plaintiff flatly asserts that Burkholder told her to speak English to level four
students, but fails to include this in her proposed findings of fact in accordance with the court’s
procedures or identify Burkholder in the paragraphs of her declaration cited in an attempt to
support this assertion. (See Pl.’s Resp. Br. (dkt. #24) 9.) Nevertheless, Ripple Welke expressly
denies independently making the decision not to use Spanish in those classrooms. Viewing the
dispute about the source of her belief in the light most favorable to Ripple Welke, therefore, the
court will infer that her belief was attributable to an express or implicit direction from someone in
authority within the District, or to the District’s negligence in failing to provide sufficient
direction. As a result, the court will infer that Ripple Welke believed in good faith that she was
expected to use English instead of Spanish as often as possible in her academic classrooms.
5
Spanish, although no one ever conveyed this concern to Ripple Welke.7 In July 2008,
between the school year in which Ripple Welke first started at Midvale and the following
school year, the District assigned Pam Wilson to replace Burkholder as the principal of
Midvale.
Before Wilson had even assumed her duties as principal, Burkholder
apparently advised her that some of Midvale’s bilingual staff members were questioning
whether Ripple Welke was fluent enough to be a BRS, although again Burkholder
apparently chose not to tell Ripple Welke of these concerns.
Soon after the 2008-2009 school year began, bilingual staff members at Midvale
informed Principal Wilson directly that Ripple Welke seemed hesitant to converse with
them in Spanish or to call Spanish-speaking parents on the phone. Wilson relayed these
renewed concerns to Assistant Director Christianson, who replied that she would have
Silvia Romero-Johnson, the District’s Coordinator of Bilingual Education, evaluate some
of Ripple Welke’s written translations.
Ripple Welke denies that there was any basis for her colleagues’ expressed
concerns and denies being hesitant to call parents. Instead, she avers that “[n]one of the
7
Plaintiff also purports to dispute whether Burkholder expressed concerns to Christianson, but
the only basis for her dispute is that “[n]obody ever said anything to [her] about this, even when
she was being terminated.” (Pl.’s Resp. PFOF (dkt. #22) ¶ 89.) Perhaps this is enough to call
into question Burkholder’s and Christianson’s recollection of this conversation, at least absent
contemporary, corroborating records, but the court views this dispute as immaterial for purposes
of summary judgment since Burkholder did not ultimately participate in the decision to terminate
Ripple Welke and the initial, third-hand concerns by Midvale’s bilingual staff made in 2008 were
too remote in time to her firing in mid-February 2009 and also never shown to be the product of
any bigotry. See Fed. R. Civ. P. 56(e); cf. Haywood v. Lucent Techs., Inc., 323 F.3d 524, 530 (7th
Cir. 2003) (even bigoted comments directed toward the plaintiff in the summer of 1999, before
her termination in December 1999, were “too remote to provide the link [she] needs for a ‘direct
evidence’ case”).
6
Midvale staff began conversations with me in Spanish or continued to use Spanish when
I would attempt to speak with them.” (Decl. of Susanne Ripple Welke (dkt. #23) ¶ 22.)
In September 2008, Wilson was also informed that a Spanish-speaking parent
wrote a letter to a teacher at Midvale to explain that she had called to report her child’s
absence on an earlier date. In her letter, that parent complained of being referred to
someone who did not speak Spanish well. Upon receiving a copy of the letter, Wilson
directed staff members to investigate who spoke to the parent on the phone.
After
learning that Ripple Welke was the BRS the parent referenced in the letter, Wilson again
contacted Christianson.8 They then decided to schedule a meeting with Ripple Welke to
discuss her job performance.
D. First Meeting
Ripple Welke, Wilson, Christianson, Romero-Johnson, Heidi Tepp, a labor
relations attorney for the District, and Ken Volante, a union representative, attended the
first meeting, which was held on October 14, 2008. Like Ripple Welke, Wilson and
Christianson are both white females born in the United States, whose native language is
English. (Decl. of Pamela Wilson (dkt. #12) ¶ 2; decl. of Amy Christianson (dkt. #16)
¶ 2.) Romero-Johnson was born in Argentina and learned Spanish as her native language.
(Decl. of Silvia Romero-Johnson (dkt. #15) ¶ 3.) The District represents that she is
Hispanic. (Def.’s Opening Br. (dkt. #9) 29.)9
8
When a Spanish-speaking parent calls Midvale’s main office, which is staffed with individuals
who are not fluent in Spanish, the person who answers the call contacts a BRS to speak with the
parent.
9
The record does not indicate Tepp’s or Volante’s place of birth or native tongue, but the parties
7
During the meeting, Wilson commented that Ripple Welke appeared to be more
comfortable using English than Spanish. The District contends that Wilson made this
remark in reference to the concern voiced by other Midvale staff members that Ripple
Welke would respond in English even when they addressed her in Spanish, as well as
Wilson’s own observations of Ripple Welke in the classroom as part of her normal duties
as Midvale’s principal. Ripple Welke, on the other hand, contends that Wilson would
not have held that same belief if she were Latina, had a Latina name or spoke Spanish as
her native language.
Also during the October 14 meeting with Ripple Welke, Romero-Johnson
reviewed errors in some of her written translations.
Specifically, Romero-Johnson
identified errors in grammatical structure, verb tense, and the writer’s intended meaning.
Ripple Welke acknowledged making mistakes in her written translations, explaining that
she did not use Spanish often during a six to nine year period before her employment
with the District.10
agree that Wilson, Christianson, and particularly Romero-Johnson were the District’s decisionmakers with respect to evaluating and ultimately terminating Ripple Welke’s employment.
10
Although Ripple Welke acknowledges some errors in her written translations, the parties
generally disagree about the quantity and quality of those inaccuracies in some of her translations,
with plaintiff formally moving to strike internet translations submitted by defendant in support of
its position. (Dkt. #30.) Defendant also notes that Equal Rights Officer Steven Herje of the
Wisconsin Equal Rights Division found Ripple Welke’s translations were “riddled with the most
basic errors of the sort which would never be made by native speakers (educated or not).” (Def.’s
Opening Br. (dkt. #9) 33.) On the present record, the court is not able to resolve the parties’
disputes regarding the accuracy of certain translations. Rather, for purposes of summary
judgment, the court will simply credit plaintiff’s general assertion as the non-moving party that
Romero-Johnson incorrectly identified some errors in the written translations because of her
familiarity with a different Spanish dialect. Moreover, since both the “trigger” for Ripple Welke’s
review and reasons for firing were principally (if not wholly) due to her speaking skills, the
disagreement is largely immaterial. Accordingly, the court will deny plaintiff’s motion to strike as
moot.
8
This first meeting concluded with Ripple Welke stating that she would make
efforts to improve her Spanish, and the District assigning Romero-Johnson to observe her
oral and written Spanish proficiency.
The parties also planned to schedule another
meeting after Romero-Johnson had the opportunity to further observe Ripple Welke on
the job.
While 2008-2009 was Romero-Johnson’s first school year as the District’s
Coordinator of Bilingual Education, plaintiff acknowledges that she had extensive
experience working with BRSs and other bilingual staff members, including experience in
assessing classroom performance and written translations.
E. Follow Up Evaluation
Romero-Johnson observed Ripple Welke for about an hour on November 18 and
one and a half hours on December 16, 2008. She also observed Ripple Welke escort a
student from the bus to the cafeteria, interact with students on the playground and assist
in an art class in which Ripple Welke spoke Spanish extensively.
In addition,
Romero-Johnson evaluated written translations, which Ripple Welke again admits
contained some errors, although also attributes some of the errors to Romero-Johnson
having a different dialect and vocabulary, rather than actual errors in translating. Finally,
Romero-Johnson graded Ripple Welke’s oral Spanish proficiency during a phone
conversation utilizing the same form that the District uses to evaluate bilingual job
applicants. As to the latter, Ripple Welke received a score of nine out of a possible
fifteen points, placing her in the District’s “Intermediate” range of proficiency.
Midvale’s Principal Wilson followed-up with Romero-Johnson in writing on
January 7, 2009, expressing interest in her assessment of Ripple-Welke because “[w]ith
9
report cards being translated and many [Individualized Education Program] meetings
coming up, I want to be sure parents are getting appropriate translations.”
Romero-Johnson responded in relevant part to Wilson’s inquiry as follows:
I observed Susanne on two occasions at Midvale Elementary.
Susanne has a general positive demeanor when interacting
with Spanish-speaking students. She addresses them in
Spanish. Her speech is heavily accented, and at times,
students do not understand what she says. I sensed a bit of
frustration when she has to repeat herself because students do
not understand her, although it didn’t happen repeatedly.
Susanne does try hard to communicate, but there is
interference due to her non-native accent and grammatical
errors.
I have also analyzed her writing. I obtained samples from
school staff, and Susanne herself provided additional samples.
I observed that her translations are quite literal, which often
do not convey the meaning intended by the original writer.
Also, she is still developing the use of verb tenses which make
the translations hard to understand. . . . .
Susanne’s translation skills are far behind from what is
expected from a BRS responsible for making accessible to
parents the culture of schools. I believe she would be difficult
for parents to understand on the phone. Parents are usually
very grateful of anyone speaking any level of Spanish who
would help them. Susanne could help them on a face-to-face
[basis], with some level of struggle. However, her speaking
skills need to be at a higher level as a BRS. Susanne’s
Spanish language skills are below what is expected for a BRS,
and would probably need extensive additional language
training, beyond the level of continuing support that a typical
BRS with high level of language skills would require.
In response to Romero-Johnson’s message, Wilson indicated that she was “interested in
the next steps, and moving as quickly as possible.”
10
F. Second Meeting
The second meeting was held on January 20, 2009, with the same individuals in
attendance. During that meeting, Romero-Johnson presented her observations of Ripple
Welke’s Spanish skills. Ripple Welke disagreed with Romero-Johnson’s conclusion that
her Spanish was difficult to understand and disputed several of the apparent errors
identified in her written translations, explaining that some words were unfamiliar to
Romero-Johnson because she learned Spanish in a different dialect.
Ripple Welke also contends that Wilson and Tepp made remarks at the meeting
that suggest discriminatory animus. According to Ripple Welke, Wilson remarked that
she would not be having problems with her Spanish if she were “a native speaker.”
While Wilson does not recall (and therefore does not deny) making that statement, the
District denies that it evinces any bias on her part.
Finally, Ripple Welke claims that after the District agreed to give her additional
time to demonstrate her capability, the District Labor Relations Attorney Tepp told her,
“You can’t learn a language. You either know it or you don’t.” The District responds
that this, too, does not express discriminatory bias, but rather Tepp expressing her belief
that Ripple Welke would be unable to make satisfactory improvements in her Spanish
within the timeframe the District was willing to delay its decision on her possible
termination. Regardless, the District scheduled another meeting with Ripple Welke in
approximately one month.
11
G. Further Observation
On January 28, 2009, Romero-Johnson and Christianson again observed Ripple
Welke. The parties’ assessments regarding Ripple Welke’s job performance on that day
differ sharply. Romero-Johnson concluded that she took longer to translate a letter than
the District would expect from a BRS and that she spoke hesitantly on the phone, both
conclusions Ripple Welke contests. Similarly, Romero-Johnson concluded that Ripple
Welke struggled to translate a music lesson accurately, while Ripple Welke maintains
that she had difficulty conveying the lesson because it was too long, too complex and also
age-inappropriate for its audience, which consisted of kindergartners with low English
proficiency. In addition, Ripple Welke points out that Romero-Johnson described one of
her written translations as “better” on January 28, and she again challenges some of the
errors Romero-Johnson purported to identify.
After
observing
her
performance
on
January
28,
Romero-Johnson
and
Christianson told Ripple Welke that they were not persuaded she was capable of meeting
their expectations as a BRS. Christianson also wrote Ripple Welke a letter summarizing
the District’s evaluation of her Spanish ability based on the meetings and observations.
On February 13, 2009, Ripple Welke responded with a letter to the District defending
her job performance.
H. Final Meeting and Termination
On February 16, 2009, the same individuals attended the final meeting as were
present for the first and second. Despite demonstrating that her job performance had
improved, Ripple Welke contends, Tepp, Romero-Johnson and Wilson each stated at this
12
meeting that she had shown “no improvement.”
Ripple Welke added that
Romero-Johnson and Christianson said she had “failed” the written test the District gave
her as part of the BRS application process, adding that she “never should have been
hired.” The bottom line is not in dispute: Ripple Welke was informed at the meeting
that Christianson, Wilson and Romero-Johnson had decided collectively to fire her.
I. Other Midvale BRSs
Two other BRSs, N.G. and D.J., one Nicaraguan and one Puerto Rican, worked
full-time alongside Ripple Welke at Midvale.
Ripple Welke asserts that the District
never observed them or evaluated their Spanish proficiency in the same manner, despite
the fact that they had lower scores than she on the BRS application test. From their
lower scores, along with the District’s assessment that at least one of the other two BRSs
had a Spanish proficiency level appropriate for elementary grades that was similar to her
own, Ripple Welke would infer that they also made similar Spanish errors.
Finally,
Ripple Welke contends that Wilson’s perception that she was less comfortable using
Spanish in her classrooms may have been warped by the fact that the other two BRSs
were placed in classrooms in which they were expected to use Spanish more often than in
her classroom.
At the same time, there is no evidence that anyone within the District, including
especially the decision-makers here (Wilson, Christianson and Romero-Johnson), had
been made aware of any complaints about the Spanish speaking ability of any other BRS,
nor about the amount of Spanish they spoke in their classrooms.
Additionally, the
parties agree that the District hired a white female to replace Ripple Welke as a BRS who
13
was born in the United States and whose native language is English. There is also no
dispute that Christianson interviewed and recommended that the District hire several
other Caucasian BRSs while she was the Assistant Director of ESL and Bilingual
Education.
OPINION
Summary judgment is appropriate “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.” Fed. R. Civ. P. 56. At summary judgment, plaintiff must “show through specific
evidence that a triable issue of fact remains on issues for which [she] bears the burden of
proof at trial. . . . [T]he evidence submitted in support of [her] position must be
sufficiently strong that a jury could reasonably find for [her].” Knight v. Wiseman, 590
F.3d 458, 463-64 (7th Cir. 2009) (internal quotation omitted). In deciding a motion for
summary judgment, the court must view all facts in the light most favorable to the
non-moving party and draw all reasonable inferences in favor of that party. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
Here, Ripple Welke, a white female born in the United States, claims reverse
discrimination, asserting that the District terminated her on the basis of her race and
national origin in violation of both Title VI and Title VII. More precisely, she claims
that the District fired her from the position as a Spanish-speaking BRS because she is not
a native Spanish speaker.11
11
Certainly, reference to one’s native tongue may be code for discriminating based on race or
nation of origin, although in a reverse discrimination case, especially one where language facility is
14
In evaluating her intentional discrimination claims, the court applies the same
basic framework under both Title VI and Title VII.12 See Paul v. Theda Med. Ctr., Inc.,
465 F.3d 790, 795 (7th Cir. 2006). A plaintiff alleging discrimination can proceed under
the direct or indirect method.13 Silverman v. Bd. of Educ. of the City of Chi., 637 F.3d 729,
733 (7th Cir. 2011). Under the direct method, Ripple Welke must present “either direct
evidence of discriminatory intent (such as an admission) or enough circumstantial
evidence to allow a rational jury to infer that discriminatory intent motivated” the
legitimately the central qualification for employment, it might be argued that considering one’s
“native tongue” is not really about not being white or raised in the United States, since there is no
evidence that the same concerns would not be raised by the District for a Latino, whether born in
the United States or elsewhere, who spoke English as their first language or be raised for a white
person born in the United States whose native language was Spanish. Rather than find such a
claim is precluded, however, the court only considers the context in which the qualities of a
“native” Spanish speaker arose as part of its larger obligation to weigh the circumstantial evidence
of discriminatory intent.
12
There are, of course, substantive differences between the two types of claims. For example,
Title VII affords Ripple Welke some relief upon a showing that race was a motivating factor,
whereas Title VI claims may require but-for causation.
See 42 U.S.C. §§ 2000e-2m,
2000e-5(g)(2)(B) (authorizing Title VII discrimination claims where an improper consideration
was a “motivating factor” for the adverse action); see also Gross v. FBL Fin. Servs., Inc., 557 U.S.
167, 175-78 (2009) (rejecting mixed-motive claim in ADEA context and defaulting to “general
rule” requiring but-for causation); Serwatka v. Rockwell Automation, Inc., 591 F.3d 957, 961 (7th
Cir. 2010) (“Although the Gross decision construed the ADEA, the importance that the Court
attached to the express incorporation of the mixed-motive framework into Title VII suggests that
when another anti-discrimination statute lacks comparable language, a mixed-motive claim will
not be viable under that statute.”). Defendant also argues that dismissal of plaintiff’s Title VI
claim is required because there is no evidence that “the District received federal funds for the
primary purpose of providing employment.” (Def.’s Opening Br. (dkt. #9) 38 (citing cases in
support).) Because the court holds below that plaintiff has failed to put forth sufficient evidence
of intentional discrimination under the lower standard of Title VII, however, it need not take into
account these distinctions, nor the parties’ arguments regarding the District’s receipt and usage of
federal funds.
13
As plaintiff points out, the Seventh Circuit has recently criticized the rigidity of the direct and
indirect frameworks, but it nevertheless encourages courts to continue analyzing discrimination
claims at summary judgment through those traditional lenses, keeping in mind the “ultimate
question . . . whether a reasonable jury could find prohibited discrimination.” Simpson v. Beaver
Dam Cmty. Hosps., Inc., 780 F.3d 784, 789-90 (7th Cir. 2015) (internal quotation marks omitted)
(quoting Orton-Bell v. Indiana, 759 F.3d 768, 773 (7th Cir. 2014)). Accordingly, the court
continues to utilize this framework, however clunky it may be, keeping in mind the ultimate
question for a jury.
15
District’s decision to terminate her employment. Burnell v. Gates Rubber Co., 647 F.3d
704, 708 (7th Cir. 2011). Under the indirect method, in contrast, a plaintiff follows the
traditional framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For
reasons explained below, plaintiff falls well short under either method.
I. Direct Method
The most straightforward way for plaintiff to satisfy her burden of establishing a
prima facie case of discrimination is to present direct evidence, “which would entail
something akin to an admission by the employer[.]” Coleman v. Donahoe, 667 F.3d 835,
860 (7th Cir. 2012) (internal quotation marks and citation omitted).
plaintiff may rely on circumstantial evidence, which includes:
Alternatively,
“suspicious timing;
ambiguous statements; behavior or comments directed at others in the protected class;
and evidence that similarly situated employees outside the protected class received
systematically better treatment.” Burnell, 647 F.3d at 708; see also Darchak v. City of Chi.
Bd. of Educ., 580 F.3d 622, 631 (7th Cir. 2009).
To survive summary judgment by relying on circumstantial evidence under the
direct method, plaintiff’s evidence must be sufficient to create “a convincing mosaic of
discrimination.” Good v. Univ. of Chi. Med. Ctr., 673 F.3d 670, 674 (7th Cir. 2012).
“Whatever circumstantial evidence a plaintiff presents ‘must point directly to a
discriminatory reason for the employer’s action.’”
Burnell, 647 F.3d at 708 (quoting
Adams v. Wal-Mart Stores, Inc., 324 F.3d 935, 939 (7th Cir. 2003)).
Plaintiff relies on three different statements as evidence of the District’s
discriminatory animus: (1) Wilson’s comment that Ripple Welke appeared to be more
16
comfortable using English than Spanish; (2) Wilson’s remark that Ripple Welke would
not be having problems with Spanish if she were a native speaker; and (3) Tepp saying,
“You can’t learn a language.
You either know it or you don’t.”
None of the three
statements amount to direct evidence that the District fired her out of an intent to
discriminate; indeed, plaintiff all but concedes as much by characterizing the statements
as evidence supporting an inference that “Wilson, Tepp and Romero-Johnson were more
willing to believe that Ms. Ripple Welke was incompetent, precisely because she was not
a native Speaker with an Hispanic ethnic background.” (Pl.’s Resp. Br. (dkt. #24) 16.)
At most, the three statements plaintiff identifies may serve as circumstantial
evidence permitting an inference of discrimination, particularly since none of the
statements are attributable to the principal decision-maker, Romero-Johnson, Tepp was
not even a decision-maker and Wilson was one of three decision-makers. Even assuming
that a reasonable finder of fact could infer discriminatory intent from the three
statements, however, defendant offers several reasons why each statement is ambiguous.
First, Wilson’s statement regarding Ripple Welke’s comfort with speaking English as
opposed to Spanish is based on her own observations of Ripple Welke in class, informed
by her observations of other BRSs, as well as concerns about Ripple Welke’s willingness
and ability to speak Spanish to her colleagues and at least one parent, which were relayed
to Wilson.14 Second, even if Wilson made the “native speaker” remark, she may well
14
Plaintiff suggests that because Wilson was not herself a Spanish speaker, she could not have
relied on these observations, but that is not true, because a supervisor can rely on the
observations of other employees and customers, and because she was in a position to evaluate
Ripple Welke’s performance in the classroom based on that of other BRSs and on student
reactions, especially when the latter was apparently almost exclusively conducted in English,
17
have been commenting on the type of errors Ripple Welke was making, rather than
suggesting that Ripple Welke needed to be a native Spanish speaker in order to be
qualified as a BRS.15 See Tippie v. Spacelabs Med., Inc., 180 F. App’x 51, 54 (7th Cir.
2006) (“Taken in context, [the decision-maker’s] use of the phrase “not native” was a
manner of describing [the plaintiff’s] Spanish language abilities, not her national origin.
In any event . . . it is not direct evidence of discrimination.”). Third, a more reasonable
interpretation of Tepp’s remark was that one versed in a language is either competent or
not, and the District is unwilling to give Ripple Welke an extensive amount of time to
develop Spanish proficiency “on the job.”
While this court would be inclined to resolve each of these inferences in
defendant’s favor given that one might suppose the ideal of any language expert is
presumably “to speak as a native,” especially when one’s job is principally to assist with
the understanding of native speakers, the statements challenged here at least fall short of
admissions that the District terminated Ripple Welke’s employment “based solely on an
impermissible ground.” Dandy v. United Parcel Serv., Inc., 388 F.3d 263, 272 (7th Cir.
2004). At minimum, the ambiguity of the statements, standing against the District’s
hiring of a white non-native Spanish speaker to replace Ripple Welke, her admitted
hiatus from even speaking Spanish of some six to nine years before taking a position with
however limited by her own lack of facility with Spanish.
15
Plaintiff also suggests that a reasonable jury could infer discriminatory animus because Wilson
“lied” about making this remark, citing Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133,
147 (2000). The fundamental problem with this argument (aside from the difference in the
nature of the remark itself) is that Wilson did not deny saying it, but rather testified she could not
recall saying it, while in Reeves, the affirmative explanation given was demonstrably false, therefore
allowing “the trier of fact [to] reasonably infer . . . that the employer is dissembling to cover up a
discriminatory purpose.” Id.
18
the District and complaints by two other BRSs and at least one parent about her speaking
skills, undermines plaintiff’s claim of circumstantial evidence of discriminatory intent.16
Cf. Darchak, 580 F.3d at 631-32 (employer’s “stupid Polack” remark, as well as three
other “suggestive” statements, made shortly before adverse employment action “add[ed]
up to discriminatory intent”).
The other form of circumstantial evidence that plaintiff offers is the assertion that
the District’s “similarly situated” employees are Hispanic and native Spanish speakers,
who received systematically better treatment. Although “they need not be identical in
every conceivable way” to qualify her colleagues as similarly situated, plaintiff must show
that they are “directly comparable to [her] in all material respects.” Coleman, 667 F.3d at
846 (internal quotation marks and citations omitted). Determining whether employees
are similarly situated requires a “flexible, common-sense examination of all relevant
factors.” Id. (internal quotations omitted). The typical factors include: (1) whether the
employees had a common supervisor; (2) whether the employees were subject to the
same rules of conduct; and (3) whether the employees were engaged in similarly serious
16
Courts have warned in an analogous employment discrimination context that “[a]ccent and
national origin are obviously inextricably intertwined in many cases,” providing “an easy refuge
. . . for an employer unlawfully discriminating against someone[.]” Fragante v. City and County of
Honolulu, 888 F.2d 591, 596 (9th Cir. 1989); see also Hasher v. Cal. State Bd. Of Equalization, 200
F.3d 1035, 1050 (7th Cir. 2000) (“[A]ccent is generally recognized as a manifestation of national
origin[.]”). But where, as here, an employee’s oral language skills are legitimate considerations of
job performance, a reasonable jury could only find unlawful discrimination by inferring that the
defendant’s real issue was not with how plaintiff spoke but where plaintiff was from. Cf. Beaver v.
McHugh, 840 F. Supp. 2d 161, 172-73 (D.D.C. 2012) (employer’s reference to plaintiff’s accent
as a reason for termination could, at most, constitute circumstantial evidence). This would seem
especially true where the plaintiff acknowledges (indeed stresses) that she had learned to speak
with a more traditional accent and dialect (presumably Castillian), rather than one familiar to her
students and parents.
19
conduct.17 Id. at 847. This fact-intensive inquiry is usually a question for a jury, but
summary judgment is appropriate when no reasonable jury could find that a plaintiff has
met her burden. Id. at 846-47.
Plaintiff claims that Latino BRSs received systematically better treatment because
the District never monitored their Spanish skills as closely as it did hers, even though
their paper test scores reflect similar or worse translating errors. To be more precise,
plaintiff argues that a “reasonable trier of fact could infer, based on their test scores
alone, that they were at least as worthy of monitoring as was Ms. Ripple Welke, but were
not monitored because the District’s decision-makers assumed their competency, based
on their ethnicity.” (Pl.’s Resp. Br. (dkt. #24) 15.)
There are several glaring problems with plaintiff’s proposed comparators when
viewed in light of the relevant facts and circumstances of this case. As an initial matter,
plaintiff cannot compare herself with all other BRSs employed by the District, since the
District is not the common supervisor.18 Indeed, Ripple Welke insists that she was never
given a performance evaluation or told her Spanish was not up to par when she held parttime BRS positions at Toki Middle and Chávez Elementary Schools. She also insists that
her roles as a BRS were different with those two schools then it was as a full-time BRS at
17
While “[t]he number of relevant factors depends on the context of the case,” a plaintiff must at
least show these three in “the usual case.” Coleman, 667 F.3d at 847. The parties do not suggest
any reason to depart from the usual factors, so the court considers each here.
18
The District submitted a spreadsheet to the Wisconsin Equal Rights Division identifying that
between 2008 and 2010, it employed 42 Spanish BRSs who identified as Hispanic and 23,
including plaintiff, who identified as white. (Def.’s Reply PFOF (dkt. #28) ¶¶ 226, 228.)
According to that spreadsheet, 9 of 26 BRSs for whom native language is listed identified only
English as their native language, including one Hispanic BRS born in the United States. (Decl. of
Amy Christianson, Ex. 7 (dkt. #25-20).)
20
Midvale Elementary School. (Pl.’s PFOF (dkt. #21) ¶¶ 3, 9, 10.) In fact, Ripple Welke
claims no discriminatory treatment until after Midvale Principal Wilson contacted
Christianson to report concerns about her job performance there. Accordingly, the only
BRSs who could qualify as directly comparable to Ripple Welke are N.G. and D.J., who
worked under the same principal.
Whether Ripple Welke can survive summary judgment on her claim that she is
similarly situated to N.G. and D.J. turns on the second and third factors.
Plaintiff
essentially collapses the two, arguing that N.G. and D.J. were never subject to any
scrutiny from the District despite also committing Spanish translation errors.
With
respect to these factors, however, Ripple Welke offers no evidence upon which a
reasonable trier of fact could find that N.G. and D.J. had similarly serious job
performance issues.
At most, Ripple Welke suggests that N.G. and D.J. “were at least as worthy of
monitoring as was Ms. Ripple Welke,” but she offers nothing in support of this
contention beside her speculation based upon: (1) their orginal lower written test scores
on the District’s translation test as candidates for BRS openings; (2) personnel records
indicating that one of the other BRS’s Spanish proficiency was appropriate for the same
grade levels as Ripple Welke; and (3) her observation that there “were errors in
translation in documents created by other district employees.” (Pl.’s Resp. Br. (dkt. #24)
14.)
These facts alone are insufficient for a reasonable jury to find that N.G. and D.J.
are “similar comparators” for several material reasons.
21
Ripple Welke exhibits a
misunderstanding of her burden under the third factor -- similarly serious conduct -- by
arguing that a “reasonable trier of fact could infer that these native Spanish speakers
whose performance was not assessed or monitored after hire were not perfect speakers or
translators.” (Id.) Even crediting the implication that the District required perfection
from Ripple Welke as a rhetorical device, it is not enough for her to suggest that N.G.
and D.J. fell below some undefined level of job performance. Indeed, it is undisputed
that Ripple Welke was not subjected to greater scrutiny because of her performance on
written admission tests at all, or even written translations on the job, but rather because
of observations about her ability to speak Spanish, as reported by her fellow BRSs,
principal and at least one disgruntled parent.
Even if plaintiff had established some measurable standard of job performance
below which the District claims she fell, she has presented no evidence upon which a
reasonable trier of fact could find that N.G. and D.J. committed similarly serious errors
to hers. Certainly, their test scores before hiring cannot serve as those errors under the
third factor because even though “Romero-Johnson and Christianson justified
terminating Ms. Ripple Welke’s employment by saying that she had ‘failed the test’ . . .
and ‘never should have been hired,’” Ripple Welke makes no suggestion that the District
treated her differently from N.G. or D.J. based on written test scores.
Moreover, had plaintiff shown that the job performance of N.G. and D.J. fell short
to a similarly serious degree as did her own, she still fails to present any evidence that the
District treated them differently despite performing similarly.
Again, nothing in the
record indicates that Ripple Welke was subject to any heightened scrutiny until after
22
Wilson had become aware of concerns about Ripple Welke’s ability and willingness to
speak Spanish from bilingual staff members at Midvale and a parent who spoke to Ripple
Welke on the phone. In contrary, there is no evidence that Wilson, Christianson, Tepp
or Romero-Johnson were ever informed about any similar concerns regarding N.G. and
D.J.19 Accordingly, Ripple Welke can only speculate that the District treated N.G. and
D.J. more favorably despite their similar job performance. That is not enough to satisfy a
prima facie case under the direct method.20 See Good, 673 F.3d at 675 (“[G]uesswork and
speculation are not enough to avoid summary judgment[.]”); see also Olendzki v. Rossi, 765
F.3d 742, 749 (7th Cir. 2014) (“At the summary judgment stage of a proceeding, a
plaintiff must ‘put up or shut up’ and ‘show what evidence [she] has that would convince
a trier of fact to accept [her] version of events.’”) (quoting Steen v. Myers, 486 F.3d 1017,
1022 (7th Cir. 2007)).
19
Even if N.G. and D.J. were motivated by bias against her as a non-native speaker in reporting
that she seemed reluctant to speak Spanish -- and plaintiff offers no evidence of that -- neither
participated in the decision to terminate plaintiff, and their input would have been essentially
immaterial to that decision given the decision-makers’ intervening evaluations of plaintiff’s
speaking skills. Indeed, the principal evaluations conducted by Romero-Johnson leading up to the
decision to terminate make no reference to these early subjective comments.
20
The court is cognizant that the Seventh Circuit has warned district courts about requiring too
must similarity between comparators. See Coleman, 667 F.3d at 851-52. As the Seventh Circuit
has explained, however, this warning was intended, at least in part, to insure plaintiffs benefitted
from the intended “boost” of the McDonnell Douglas framework. Id. at 852. The Seventh Circuit
has also suggested that this boost is, if not absent, at least less essential in a reverse discrimination
context as here. See Phelan v. City of Chi., 347 F.3d 679, 684-85 (7th Cir. 2003). Regardless,
Ripple Welke offers no evidence that N.G. and D.J. are directly comparable to her in a manner
that is material in the context of this case (i.e., that the District was notified of similar job
performance concerns about N.G. and D.J., yet decided not to observe or evaluate them in a
similar fashion). Indeed, the materiality of the District’s awareness of concerns expressed about
the Spanish proficiency of a BRS is underscored by plaintiff’s insistence that the District lacked
structure in providing feedback regarding her job performance and expectations. (See Pl.’s PFOF
(dkt. #21) ¶¶ 1-8, 39.) This distinction between Ripple Welke and her proffered comparators
with respect to the District’s awareness of concerns about their Spanish proficiency is “so
significant that [it] render[s] the comparison effectively useless.” Humphries v. CBOCS West, Inc.,
474 F.3d 387, 406 (7th Cir. 2007).
23
Even crediting plaintiff’s general assertion that the District was less inclined to
identify errors committed by N.G. and D.J. because they were “native speakers,” she has
still not presented “a convincing enough mosaic of circumstantial evidence” that would
entitle her to proceed past summary judgment. Other than pointing to two dubious
comparators, plaintiff points to three, ambiguous comments, none of which were
attributable to two of the three decision-makers, including by far the most influential
decision-maker here, Romero-Johnson. Even as to Ripple Welke’s challenge to the last of
the three decision-makers, she can only point to Wilson’s observation about the amount
of Spanish actually used in her classroom and a reference to the benefits of being a
“native speaker.” Specifically, plaintiff asserts that a “reasonable trier of fact could infer
that Wilson would have been unlikely to have drawn such a conclusion if Ms. Ripple
Welke had been a Hispanic native speaker.” (Pl.’s Resp. Br. (dkt. #24) 9.) Similarly,
while acknowledging that her written translations reviewed by Romero-Johnson
contained errors, plaintiff asserts that Romero-Johnson did not give her the benefit of the
doubt for some apparent mistakes, arguing that a “reasonable trier of fact could infer that
Ms. Romero-Johnson would have at least extended a native Spanish speaker who was
insisting that she could prove that her words and usages were correct and common, the
opportunity to do so.” (Id. at 10.)
Both of these inferences, however, amount to speculation on the limited
circumstantial evidence here. Certainly, this limited evidence does not “lead[] directly to
the conclusion that [the District] was illegally motivated, without reliance on
24
speculation.”21 Good, 673 F.3d at 676 (emphasis in original). Indeed, the circumstances
here go back to the original flaw in plaintiff’s reasoning, since the events triggering a
more detailed evaluation of plaintiff’s job performance were subjective observations by
staff and at least one disgruntled parent about Ripple Welke’s apparent discomfort and
inability to speak Spanish, at least in an understandable dialect. Once those concerns
were raised, there is simply no evidence that the District did, or even would have, treated
anyone differently than plaintiff, whatever their race or country of origin.
For that matter, plaintiff never really explains how her not being “Hispanic” or
“Latino” contributed to her termination.22
For many third and fourth generation
“Latinos” in this country, English may well be their first, if not only, language. But if the
claim is limited to those for whom Spanish is their native tongue, her claims of
discrimination based on “race” or “national origin” become much more problematic.
Indeed, it is questionable whether this is a protected classification at all, much less one in
a reverse discrimination case, which is no doubt why plaintiff repeatedly interchanges
native tongue for “Hispanic” or “Latino” in her brief.
Just as crippling to plaintiff’s
construction of a mosaic of circumstantial evidence pointing directly to a discriminatory
motive is the undisputed fact that the District has regularly employed white Spanish
21
Plaintiff even lends support to the inference that both Wilson’s observation and the evaluations
performed by Romero-Johnson were at most unfortunate misunderstandings, rather than evidence
of a discriminatory motive, suggesting that they “could have happened to anyone.” (Pl.’s Resp.
Br. (dkt. #24) 10.)
22
In the United States, the terms “Hispanic” and “Latino” are often used interchangeably,
although strictly speaking, the term Hispanic “is a narrower term which only refers to persons of
Spanish-speaking origin or ancestry,” while Latino refers “more generally to anyone of Latin
American origin or ancestry, including Brazilians for whom Spanish is not even a native tongue.”
See https://en.wikipedia.org/wiki/Hispanic%E2%80%93Latino_naming_dispute (last visited
2/4/2016).
25
BRSs and that Ripple Welke was in fact replaced by another white woman born in the
United States and not a native Spanish speaker. See Good, 673 F.3d at 678.
A showing of sufficient circumstantial evidence to avoid summary judgment “can
be a high threshold, particularly in a reverse discrimination case.” Id. at 676-77. Here,
plaintiff has not begun to meet this threshold under the direct method.
II.
Indirect Method
A variant of the familiar McDonnell Douglas burden-shifting analysis applies to
reverse discrimination claims under the indirect method. Good, 673 F.3d at 678. To
establish a prima facie case of discrimination under the indirect method, the plaintiff must
prove: “(1) background circumstances that demonstrate that a particular employer has
reason or inclination to discriminate invidiously against whites or evidence that there is
something fishy about the facts at hand; (2) that she suffered an adverse employment
action; and (3) that she was treated less favorably than similarly situated individuals who
are not members of the protected class.” Id. (internal quotation marks omitted) (quoting
Phelan v. City of Chi., 347 F.3d 679, 684-85 (7th Cir. 2003) (altering first prong of the
indirect case to account for reverse nature of race discrimination clam)). If the plaintiff
establishes a prima facie case, the burden shifts to the employer to offer a legitimate,
non-discriminatory reason for the plaintiff’s termination. Everroad v. Scott Truck Sys., Inc.,
604 F.3d 471, 477 (7th Cir. 2010). If the employer satisfies this burden, the burden
shifts back to the plaintiff to offer evidence that the employer’s non-discriminatory
reason is pretextual. Id.
26
There is no dispute that Ripple Welke suffered an adverse employment action, but
her prima facie case falters under the indirect method on the first and third prongs for
many of the same reasons discussed above under the direct method. Primarily, plaintiff
is again unable to identify a comparator who received better treatment, much less offer
credible evidence from which a jury could reasonably infer the District’s inclination to
discriminate against whites, whether by proof of an informal affirmative action policy
working against her or a history of such discrimination against whites. See Good, 673
F.3d at 679 (collecting cases in which plaintiffs made a sufficient showing of fishy
background circumstances).
Moreover,
Ripple
Welke
has
failed
to
rebut
the
District’s
legitimate,
non-discriminatory reason for firing her by showing that its explanation is pretextual. To
make a showing, Ripple Welke would have needed to present evidence from which a
reasonable trier of fact would be able to conclude that the District was lying when it
explained that it fired Ripple Welke because she did not meet its expectations regarding
the Spanish proficiency of a BRS. See Coleman, 667 F.3d at 853 (holding that plaintiff
loses if defendant “honestly believed” its reason, even if that reason was “foolish, trivial,
or baseless”) (citation omitted); Ghosh v. Ind. Dept. of Envtl. Mgmt., 192 F.3d 1087, 1091
(7th Cir. 1999) (“Pretext is established if the plaintiff can show that the defendant’s
proffered reasons are either lies or completely lacking in factual basis.”).
Here, Ripple Welke asserts that three ambiguous statements attributed to Wilson
and Tepp demonstrate the District’s unlawful motive. She further submits that pretext is
illustrated by Wilson’s claim not to remember telling Ripple Welke that she would not be
27
having problems with her Spanish if she were “a native speaker.” Regardless of whether
or not Wilson remembered making that statement, however, none of those three remarks
provide a factual basis from which a reasonable jury could infer the District lied about its
reason for firing Ripple Welke.
On the contrary, it is undisputed on this record that the District: (1) monitored
Ripple Welke’s job performance more closely after being notified of complaints about her
oral Spanish skills by her bilingual colleagues and a student’s parent; (2) held meetings to
address its concerns about her performance; (3) had an experienced and highly qualified
person conduct an evaluation of her speaking skills, which that person also found lacking,
especially over the phone; (4) gave her additional (though admittedly limited) time to
demonstrate improvement; and (5) ultimately fired her after determining that she did not
make enough progress in her Spanish speaking ability. While plaintiff submits evidence
suggesting that the District may have been wrong about some of her shortcomings,
establishing that the District was in error about its stated reason for an adverse action is
not enough by itself to find it liable for discrimination. See Coleman, 667 F.3d at 853.
Accordingly, the evidence Ripple Welke has presented at summary judgment
cannot support a reasonable jury’s finding of reverse race or national origin
discrimination under Title VI or Title VII, and judgment must be entered in defendant’s
favor.
ORDER
IT IS ORDERED that:
1) Defendant’s motion for summary judgment (dkt. #8) is GRANTED;
28
2) Plaintiff’s motion to strike (dkt. #30) is DENIED as moot; and
3) The clerk of court is directed to enter judgment in favor of defendant and close
this case.
Entered this 8th day of February, 2016.
BY THE COURT:
/s/
________________________________________
WILLIAM M. CONLEY
District Judge
29
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