Salvadori, Gema v. Franklin School Dist , 293 F.3d 989 ( 2002 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 01-3829
GEMA SALVADORI,
Plaintiff-Appellant,
v.
FRANKLIN SCHOOL DISTRICT, FRANKLIN EDUCATION
ASSOCIATION, WISCONSIN EDUCATION ASSOCIATION
COUNCIL, MARIE GLASGOW, and DONA SCHWICHTENBERG,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 98-C-1256—J.P. Stadtmueller, Chief Judge.
____________
ARGUED MAY 14, 2002—DECIDED JUNE 14, 2002
____________
Before COFFEY, MANION, and EVANS, Circuit Judges.
EVANS, Circuit Judge. Gema Salvadori, who is originally
from the Philippines, was a science teacher in the Franklin
(Wisconsin) School District from the 1990-91 school year
through the 1997-98 school year when the District decided
not to renew her employment contract. The board took this
step, it says, because Salvadori failed as a teacher. Sal-
vadori saw things differently. She claimed the board (and
the other defendants, who we’ll get to) acted because of
ethnic animus, retaliated against her for complaining about
discriminatory practices, and denied her due process to
2 No. 01-3829
boot. The district court (Chief Judge J.P. Stadtmueller)
granted summary judgment for the defendants, and Sal-
vadori appeals.
Before turning to the facts, we note that, although we
view the facts in the light most favorable to Salvadori,
her failure to comply with one of the district court’s local
rules resulted in a more defendant-friendly version of the
facts than one might expect. This is so because once the de-
fendants moved for summary judgment, Salvadori was
required by Eastern District of Wisconsin Civil Local Rule
56.2 to submit a specific response to the defendants’ pro-
posed findings of fact that clearly delineated only those
findings to which she asserted the existence of a genuine
issue of material fact. The local rule required Salvadori’s
response to refer to the contested findings by paragraph
number and to cite evidentiary materials supporting her
claim that a genuine issue of material fact existed. See Civ.
L.R. 56.2(b)(1).
Salvadori failed to comply with this rule. Her response
to the union defendants’ proposed findings of fact consisted
of a cursory answer to each proposed fact: “admitted,” “dis-
puted,” “admitted in part and disputed in part,” or an ob-
jection based on something such as relevance or lack of per-
sonal knowledge. None of her responses cited to evidentiary
material.
In responding to the School District’s proposed findings
of fact, Salvadori cited to the record in only 15 of her 306
responses. Even the evidence cited by those 15 responses
did not actually contradict the School District’s proposed
findings of fact. For example, Salvadori “disputed” para-
graph 32 of the School District’s proposed findings of fact,
which stated, “[Assistant Principal] Ms. [Julia] Lyon crit-
icized Ms. Salvadori for insensitively referring to this
child as ‘the kid with no teeth’ in front of the class.” Sal-
vadori’s response to this proposed finding stated, “Plaintiff
No. 01-3829 3
disputes any inference that she was not meeting her es-
sential functions as a teacher.” It then cites to Salvadori’s
proposed additional findings of fact, which in turn cites
to a deposition in which Lyon stated that as of May 1995,
Salvadori was generally meeting her duties and responsi-
bilities as a middle school science teacher. Obviously, all
this rigmarole does not contradict the School District’s
specific proposed finding that Salvadori referred to a stu-
dent as “the kid with no teeth.” Additionally, of Salvadori’s
15 responses that cite to any kind of evidentiary material,
10 repeat verbatim or paraphrase the statement “Plaintiff
disputes any inference that she was not meeting her es-
sential functions as a teacher,” then cite to the same evi-
dence noted above.
The local rule empowers the district court to conclude
that there is no genuine material issue as to any pro-
posed finding of fact to which no response is set out. See
Civ. L.R. 56.2(e). Because Salvadori did not satisfy the local
rule, the district court concluded that the defendants’ pro-
posed findings of fact were undisputed. See Waldridge v.
American Hoechst Corp., 24 F.3d 918, 921-22 (7th Cir.
1994). Therefore, we proceed under the assumption that
Salvadori conceded, to a fairly significant degree, the de-
fendants’ version of the facts. With that understanding, we
move on.
In 1990 Salvadori began teaching at the Franklin School
District’s Forest Park Middle School. It was her first full-
time teaching position. The District has a position de-
scription for teachers outlining performance expectations.
Among other things, the expectations are that teachers will
(1) avoid demeaning criticism of students, (2) maintain a
positive rapport with students, teachers, parents, and ad-
ministrators, and (3) react positively to constructive crit-
icism. During her first year, the School District received
several complaints about Salvadori in these areas.
4 No. 01-3829
In January 1991 the parents of one of Salvadori’s stu-
dents asked to have their daughter transferred out of her
class because the student received low grades and Sal-
vadori’s communication with them about the situation
was, in the parents’ view, rather poor. During the second se-
mester, several other parents asked to have their children
transferred out of Salvadori’s class because of low grades.1
Another parent complained because Salvadori punished
the entire class for the misconduct of a single student.
Additionally, the School District transferred a student out
of Salvadori’s class because Salvadori berated the girl in
front of the entire class for bringing her parents in to see
the principal to complain about Salvadori. Salvadori also
told the class that this student would no longer be in class
because the student thought that all of her problems were
Salvadori’s fault.
At the end of the 1990-91 school year, Salvadori received
a performance evaluation from Julia Lyon, one of the as-
sistant principals at Forest Park. Lyon identified classroom
management and rapport with students as two areas in
which Salvadori needed improvement.
During the 1991-92 school year, Salvadori made nega-
tive comments about some of her students that Principal
Denise Bowens felt were detrimental to their learning and
inappropriate for the emotional and developmental needs
of middle-school-aged children. On one occasion Bowens
met with a student who was crying because Salvadori called
him “stupid.” At the end of the school year Bowens com-
pleted Salvadori’s evaluation, in which she raised concerns
1
Of course, the giving of “low grades” doesn’t necessarily mean
that the teacher is not doing the right thing: the grades may be
well-deserved. But it is a fact that complaints of this sort were
made, and whether they are justified or not is not really our con-
cern.
No. 01-3829 5
about Salvadori’s classroom management, rapport with stu-
dents, and responsiveness to supervision and suggestions
for improvement. In her performance evaluation for the
1992-93 school year Bowens was critical of Salvadori’s com-
munication skills and her apparent distrust of the school’s
administration.
During the 1994-95 and 1995-1996 school years, the
School District continued to receive parent complaints
about the manner in which Salvadori graded and returned
homework, her communications skills, and her interac-
tion with students. In December 1995 Associate Principal
Tom Reinke and Principal Larry Madsen met with Sal-
vadori to discuss these complaints. Their efforts were ham-
pered by Salvadori’s refusal to acknowledge the valid-
ity of the complaints. Consequently, she refused to make
changes in her teaching style, classroom management, or
communication methods.
At the end of the 1995-96 school year, the District placed
Salvadori on a “plan of assistance,” which was designed
to improve her performance and not intended to be disci-
plinary. Salvadori was not the only teacher placed on such
a plan—several other Caucasian teachers were also placed
on plans of assistance. Salvadori’s plan identified five areas
for performance improvement: (1) classroom organization,
(2) lesson plans, (3) classroom management, (4) acceptance
of constructive criticism, and (5) communication skills. Sal-
vadori disagreed with each of the deficiencies identified
in the plan and filed a grievance challenging its validity.
In response to the grievance, the School District modified
her plan of assistance to focus on communication skills and
classroom management as key areas in which Salvadori
needed to improve. Salvadori did not cooperate with the
plan’s recommendations. She refused to meet with the ad-
ministrators who were supposed to observe and evaluate
her teaching. By her own admission, Salvadori did not
change her performance in response to the plan.
6 No. 01-3829
Part of the reason that Salvadori refused to comply with
the plan of assistance was that she perceived the plan as
“unjustified harassment,” an opinion that she stated to Su-
perintendent Marie Glasgow. In response, Glasgow asked
Salvadori to meet with her, or with another administrator
of Salvadori’s choosing, to discuss her harassment allega-
tion. Although Glasgow made several attempts to initiate
a meeting, Salvadori refused to meet with her or anoth-
er administrator. She also failed to use any of the proce-
dures set out in the School District’s anti-harassment pol-
icy.
In September 1996 Salvadori took her classes to an en-
vironmental center. During one of her morning classes, she
allowed the students to become scattered along the path
to the center, and as a result, students started throwing
berries and leaves at each other. To punish them Salvadori
took the entire class to Reinke’s office. In front of the en-
tire class Salvadori told Reinke that one of the girls had
“lambasted” her and that Salvadori would not tolerate this
behavior. Salvadori also suggested that the girl be removed
from her class, stating that the girl caused all of the prob-
lems that Salvadori had managing that class. Salvadori also
acknowledged that she had told the girl to “shut up.”
Later that afternoon Salvadori had problems with another
one of her classes on the way to the environmental center.
At the end of the class she sent Reinke a discipline slip
stating that a boy in the class had thrown chewed apples
at her back and at a condominium complex during the walk
to the center. Reinke looked into the incident and deter-
mined that Salvadori had written the disciplinary slip with-
out investigation and had disciplined the wrong boy. As a
result, Reinke issued Salvadori a written reprimand stating
that she had failed to keep control of her classes that day.
Salvadori denied that she had done anything wrong.
In January 1997 Reinke received a complaint that Sal-
vadori had referred to her students as “stupid” and “jerks.”
No. 01-3829 7
A staff member, Barb Gallagher, also complained about
the way in which Salvadori had yelled at a child. As in
previous years, parents complained about Salvadori’s com-
munication skills and her inconsistent discipline. At the
end of the 1996-97 school year, Reinke noted in Salvadori’s
performance evaluation that she had demonstrated a poor
ability to build rapport with students and had poor class-
room management skills. The school board subsequently
renewed her contract but withheld her salary increase
based on what it said were her poor classroom manage-
ment, poor communication skills, and her inability to accept
constructive criticism.
The District reassigned Salvadori to Franklin High School
for the next academic year, hoping that a transfer would
give her a fresh start. Her plan of assistance ended at
the time. During the first semester, Salvadori complained
to Principal Dona Schwichtenberg about students’ behavior
toward her in the halls between classes. She claimed that
students shouted at her to go back to the middle school or
back to the Philippines, called her names, and threw paper
balls and other objects at her. She also complained that
one student had disturbed her class twice and had referred
to Salvadori using the words “bitch” and “fuck.” Salvadori
also claimed that unidentified students asked her if she was
a green-card holder or an illegal alien. Schwichtenberg ad-
dressed the students, explaining that this sort of behavior
was unacceptable and must stop immediately. She and the
associate principals then began monitoring the halls be-
tween classes to deter this kind of misconduct and to punish
offenders.
Meanwhile, Schwichtenberg also received complaints
about Salvadori. The parent of a girl with special educa-
tion needs observed one of Salvadori’s classes and com-
plained afterward about Salvadori’s classroom manage-
ment. Schwichtenberg then began observing Salvadori’s
classes and later sent a letter explaining concerns about
Salvadori’s teaching style.
8 No. 01-3829
In Salvadori’s 1998 performance evaluation, Schwichten-
berg stated that she rarely heard Salvadori use positive
reinforcement of appropriate behavior. She also stated that
Salvadori did not respond well to criticism. When Schwich-
tenberg tried to meet with Salvadori to discuss the perfor-
mance evaluation, Salvadori refused, choosing instead to
submit a rambling written rebuttal in which she denied
Schwichtenberg’s criticism, compared the administration to
a fascist dictatorship and herself to a slave in ancient
Egypt, and used the following incendiary language:
I feel I have been brutalized, something akin to a rape,
several times over and yet should a rape victim opens
[sic] up her door to let the rapists come in and rape her
all over again, this time with her consent? . . .
This type of legalized and institutionalized plan of
harassment should never, never happen in a civilized
society and should not be tolerated at all. No decent
human being should be subject to this type of BRUTAL-
ITY.
In February 1998 the school board considered a recom-
mendation from the administration to end Salvadori’s
employment after the 1997-98 academic year. The recom-
mendation, said the administration, was based on Sal-
vadori’s ineffective teaching strategies, inability to create
an atmosphere conducive to learning, lack of professional
growth, unwillingness to assist in solving problems, and
lack of cooperation with others. The school board held a
hearing to consider the recommendation, at which Salvadori
was represented by the union, her attorney, and the
NAACP. After the hearing, the board voted to end Sal-
vadori’s employment after the 1997-98 academic year.
While employed by the School District, Salvadori was
part of a bargaining unit represented by the Franklin Ed-
ucation Association (FEA), an affiliate of the Wisconsin Ed-
ucation Association Council (WEAC). The School District
No. 01-3829 9
and FEA were parties to collective bargaining agreements
during the years that Salvadori was employed by the School
District. The FEA filed grievances on Salvadori’s behalf
when the School District placed her on a plan of assistance
and when it decided not to renew her contract. The FEA
decided that the grievances lacked sufficient merit to
proceed to arbitration. The union also investigated and
evaluated the merits of Salvadori’s claims of discrimination.
Salvadori met with union representative Jim Gibson, who
determined that parental complaints referring to her accent
were made in regard to students’ difficulty in understand-
ing her. He also determined that School District adminis-
trators had not singled out Salvadori for discussion of
parental complaints, and therefore that the School District’s
actions were not based on her race. Salvadori also raised
concerns to Gibson about discrimination regarding her
placement on the plan of assistance. Based on his knowl-
edge of white teachers who had also been placed on such
plans, including one who had been placed on a plan at the
same time as Salvadori, Gibson did not see a basis for
raising discrimination in the grievance that the union sub-
mitted on her behalf regarding the plan.
In the summer of 1996, Salvadori asked WEAC to initiate
legal action against the School District for alleged discrimi-
natory conduct. WEAC has a legal obligation to represent
employees in matters involving bargaining and enforcement
of the collective bargaining agreement, but not to pursue
individual rights claims arising outside the realm of the
collective bargaining agreement. It will, however, consider
a request to file individual statutory claims and has rep-
resented some employees in such claims if they are highly
meritorious. After reviewing documents and interviewing
witnesses provided by Salvadori, a WEAC attorney deter-
mined that there was insufficient evidence to proceed with
an individual discrimination complaint.
Summary judgment is appropriate if the pleadings, dep-
ositions, answers to interrogatories, admissions on file, and
10 No. 01-3829
affidavits show that there is no genuine issue as to any
material fact and that the moving party is entitled to
judgment as a matter of law. Vukadinovich v. Board of Sch.
Tr. of North Newton Sch. Corp., 278 F.3d 693 (7th Cir.
2002). The mere existence of an alleged factual dispute is
not sufficient to defeat a summary judgment motion. To
successfully oppose the motion, the nonmovant must pre-
sent definite, competent evidence in rebuttal. See id. at 699.
We have already noted Salvadori’s shortcomings in this
regard.
If a plaintiff cannot defeat a summary judgment motion
based on the strength of her proffered direct evidence, she
may use the burden-shifting approach outlined in Mc-
Donnell Douglas Corp. v. Green, 411 U.S. 792 (1973). To
prevail under this approach, the plaintiff must first estab-
lish a prima facie case of discrimination. This requires a
showing that (1) the plaintiff was a member of a protected
class, (2) the plaintiff was performing her job satisfactorily,
(3) the plaintiff suffered an adverse employment action, and
(4) similarly situated employees who were not members
of the protected class were treated more favorably. If the
plaintiff makes the prima facie showing of discrimination,
the burden then shifts to the defendant to articulate a
legitimate, nondiscriminatory reason for its decision. If the
employer does so, it rebuts the presumption of discrimi-
nation, shifting the burden back to the employee to show
that the employer’s proffered reason was pretextual. See
Chiaramonte v. Fashion Bed Group, Inc., 129 F.3d 391, 397-
98 (7th Cir. 1997). Despite the burden-shifting approach,
the ultimate burden of proof that the defendant discrimi-
nated remains at all times with the plaintiff. See id. at 398.
Salvadori has no trouble satisfying the first and third
elements of this test: she was born in the Philippines and
she was discharged. She has problems, however, showing
that she was performing her job satisfactorily. Salvadori
points to performance evaluations that she received in
No. 01-3829 11
1990-91, 1993, and 1995. The 1990-91 evaluation stated
that Salvadori was a “conscientious, reliable, prompt and
diligent teacher.” The 1993 and 1995 evaluations were less
glowing, stating only that she was meeting the essential
functions of her job.
Salvadori cannot satisfy the satisfactory performance
requirement by showing only that her performance was
adequate for some period of time during her employment.
She must show that she was performing well at the time of
her termination. See Hong v. Children’s Mem’l Hosp., 993
F.2d 1257, 1262 (7th Cir. 1993); Karazanos v. Navistar Int’l
Transp. Corp., 948 F.2d 332, 336 (7th Cir. 1991). By the
time the District decided against renewing Salvadori’s
contract, she had already been placed on a plan of assis-
tance with which she failed to comply and been transferred
to the high school where she exhibited the same perfor-
mance deficiencies she had at the middle school. Thus, she
cannot establish that she was performing her job satisfacto-
rily. Therefore, the district court properly found that Sal-
vadori failed to make out a prima facie case of discrimina-
tion.
Next, Salvadori argues that the School District deprived
her of equal protection by subjecting her to a racially hostile
environment and to disparate treatment. To establish an
equal protection claim a plaintiff must show that (1) she is
a member of a protected class, (2) she was otherwise sim-
ilarly situated to members of an unprotected class, and (3)
she was treated differently than members of the unpro-
tected class. See McNabola v. Chicago Transit Auth., 10
F.3d 501, 513 (7th Cir. 1993).
Salvadori’s first argument is that the School District sub-
jected her to a racially hostile work environment by ignor-
ing her complaints that students were harassing her. Sal-
vadori complained in 1993 that middle school students
referred to her as “green card.” She also argues that the
12 No. 01-3829
School District did nothing when it received complaints
about her accent in 1995.
A hostile work environment exists where the employee is
subject to conduct so severe and pervasive that a reasonable
person would find the work environment abusive or hostile.
See Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75,
81 (1998). The mere utterance of a racial epithet that en-
genders offensive feelings does not sufficiently affect the
conditions of employment to create a hostile work environ-
ment. See Harris v. Forklift Sys., Inc., 510 U.S. 17, 21
(1993). Here, the isolated offensive comments made in 1993
and 1995 were not severe and pervasive enough to alter the
conditions of Salvadori’s employment, and so she cannot
establish an equal protection claim on this ground.
Salvadori also contends that she was subjected to a
hostile work environment because high school students
harassed her in the halls between classes. An employer has
a duty to take reasonable steps to discover and rectify acts
of harassment against its employees. See Baskerville v.
Culligan Int’l Co., 50 F.3d 428, 432 (7th Cir. 1995). But
in a school situation, especially a high school full of
pumped-up teenagers, there are obviously limits on what
any administration can do to “control” inappropriate be-
havior. Nevertheless, after Salvadori complained, Princi-
pal Schwichtenberg told students that harassment of
Salvadori was unacceptable and must cease immediately.
Schwichtenberg and her associate principals then began
monitoring the halls to determine who was engaging in the
harassment so that they could discipline the offenders. This
response was both reasonable and swift. Therefore, Sal-
vadori fails to establish an equal protection claim based
on the School District’s alleged tepid response to harass-
ment by students at the high school.
Another ground for Salvadori’s equal protection claim was
the plan of assistance, which she regarded as “unjustified
harassment.” As we have noted, when Superintendent Glas-
No. 01-3829 13
gow learned of Salvadori’s concerns, she suggested that Sal-
vadori meet with her or another administrator to discuss
the perceived harassment. Salvadori declined to meet with
Glasgow or anyone else. Because plaintiffs alleging harass-
ment must reasonably take advantage of any preventive or
corrective opportunities that an employer provides, Sal-
vadori cannot establish an equal protection violation based
on the plan of assistance. See Shaw v. AutoZone, Inc., 180
F.3d 806, 811 (7th Cir. 1999); Parkins v. Civil Constructors
of Illinois, Inc., 163 F.3d 1027, 1038 (7th Cir. 1998).
Salvadori also claims that the District deprived her of
equal protection by treating her differently from other
teachers with regard to her attempts to discipline students.
Salvadori claims that students whom she sent to the
principal’s office for discipline were returned to her class-
room and that her class contained a number of “difficult”
students with learning problems. However, she failed to
put forth any evidence regarding why she disciplined the
students who were returned to her classroom or why they
were sent back. Nor did Salvadori identify a Caucasian
teacher whom the administration supported differently
in his or her discipline of students. Nor did Salvadori put
forth any evidence that her classes contained more students
with special needs than the classes of any Caucasian
teacher. To survive summary judgment, a plaintiff must
point to at least one similarly situated, nonprotected class
employee who was treated more favorably than she was. See
Ibarra v. Martin, 143 F.3d 286, 293 (7th Cir. 1998). Sal-
vadori has failed to show that she was treated differently
than Caucasian teachers (male or female) with regard to
these issues, and so she cannot establish an equal protec-
tion violation.
Her final equal protection claim concerns one of the
incidents that occurred during the ill-fated trip to the en-
vironmental center. Salvadori’s contention concerns the
written reprimand she received from (Assistant Principal)
14 No. 01-3829
Reinke for poor classroom management. Reinke issued the
reprimand after he discovered that Salvadori had punished
the wrong boy for throwing apples at her. Salvadori claims
that Jane Daly, a Caucasian teacher, was treated differ-
ently after students threw objects at her. However, Sal-
vadori failed to put forth any evidence regarding the con-
duct of Daly’s students or how the administration dealt
with it. Additionally, Salvadori failed to show that she and
Daly were similarly situated because she put forth no
evidence that Daly, like Salvadori, disciplined the wrong
student. Therefore, because she could not point to preferen-
tial treatment of a similarly situated Caucasian teacher,
Salvadori failed to establish an equal protection violation.
Finally, Salvadori argues that she put forth sufficient
evidence that the union defendants ratified the School
District’s allegedly discriminatory behavior. A union may
not refuse to file race-based, disparate-treatment grievances
solely because the union looks with disfavor on those types
of claims or because they would be troublesome to process.
See Goodman v. Lukens Steel Co., 482 U.S. 656, 669 (1987).
Here, however, the union defendants investigated Sal-
vadori’s claims of racial harassment and disparate treat-
ment and found no basis to support her claims. Therefore,
Salvadori cannot establish that the union defendants rat-
ified the School District’s allegedly discriminatory behavior.
Chief Judge Stadtmueller’s decision to grant summary
judgment to these defendants is AFFIRMED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-97-C-006—6-14-02