Lifton, Kathleen v. Bd Educ City Chicago ( 2005 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-2501
KATHLEEN LIFTON,
Plaintiff-Appellant,
v.
THE BOARD OF EDUCATION OF THE
CITY OF CHICAGO, ARNE DUNCAN,
and WILLIAM MEUER,
Defendants-Appellees.
____________
Appeal from the United States District Court for
the Northern District of Illinois, Eastern Division.
No. 03 C 0743—Elaine E. Bucklo, Judge.
____________
ARGUED JANUARY 21, 2005—DECIDED JULY 22, 2005
____________
Before RIPPLE, WOOD, and SYKES, Circuit Judges.
SYKES, Circuit Judge. Kathleen Lifton was an award-
winning kindergarten teacher who taught at Norwood Park
Elementary School, a Chicago public school on the city’s
northwest side. In January 2003, however, she resigned,
claiming she had been retaliated against for her opposition
to the early renewal of her school principal’s contract and for
her proposal to change the school’s kindergarten program.
She sued the Chicago Board of Education, its chief execu-
2 No. 04-2501
tive, and the school principal, asserting a violation of her
First Amendment rights, as well as claims for denial of due
process, defamation, and intentional infliction of emotional
distress. The district court granted summary judgment to
the defendants and we affirm.
I. Background
By all accounts Kathleen Lifton had been an exemplary
teacher during her fifteen-year stint as a kindergarten
teacher at Norwood Park. In 2002, however, things
changed. In June of that year, she decided that the kinder-
garten program at Norwood Park could use some adjust-
ments, and she brought her suggestions to the attention of
the school’s principal, Dr. William Meuer. Lifton proposed
modifying the school schedule so that students would have
staggered dismissal times. She also proposed rearranging
her teaching schedule to focus on academic subjects in the
morning, when she believed students were better able to
concentrate. She wanted to teach from 9 a.m. to 2 p.m.
without a break, working through lunch with half the kin-
dergartners while the other half ate lunch with a teacher’s
aide. The remainder of the kindergartners’ school day would
be staffed by the teacher’s aide and parent volunteers.
Meuer responded that they could discuss her proposal in
the future but that it was too late to change the program for
the upcoming school year with only two months’ notice.
In addition to her teaching duties, Lifton was a teacher
representative on Norwood Park’s Local School Council
(“LSC”), a group comprised of parents, teachers, administra-
tors, and community members charged with certain plan-
ning and oversight responsibilities at the school, in addition
to authority over the spending of certain discretionary
funds. On June 11, 2002, shortly after talking to Meuer
about her proposal for restructuring the kindergarten
program, Lifton sent a flyer home to parents inviting them
No. 04-2501 3
to an upcoming LSC meeting on June 13. The flyer read, in
pertinent part: “It’s not working . . . but we can fix it! Be
part of history in the making. Take a sneak peak [sic] at
next year’s kindergarten program. . . . Regretfully
babysitting will not be provided.”
This flyer troubled Meuer for two reasons. First, and most
importantly, he had just told Lifton that it was too late to
change the kindergarten program with only two months’
notice, yet she decided to take her plan to parents anyway.
His second objection concerned Lifton’s cancellation of
babysitting service, which was customarily provided for
LSC and PTA meetings at the school. Lifton had told Meuer
in early June that she did not want her classroom used for
babysitting because it had been “trashed” during a recent
PTA meeting; Meuer said he would look into it and offered
to relocate the service. But Lifton had no business
cancelling the babysitting service.
Lifton’s unauthorized flyer about the LSC meeting was
followed by an even more unusual communication she sent
to parents two weeks later. On June 25 Lifton sent a letter
to parents with the following message: “Yesterday, I cried
and slept and slept and cried, unmotivated to complete your
child’s report card as I had planned . . . . You know your
child best. Please complete the final quarter of the report
card. How does it feel to you?” The letter then asked for
parental input on her kindergarten restructuring plan,
again stating, “[l]et’s just call it history in the making.”
Meuer learned about this letter when an angry parent came
to his office demanding an explanation, and other parents
called the school district’s regional office to complain. Meuer
initiated a review of Lifton’s actions, but because school was
out for the summer, he could not conduct a disciplinary
hearing until August 28, the first day of the 2002-2003 year.
In the meantime, soon after school recessed for the sum-
mer, Lifton went to Mexico on a vacation with her sister.
4 No. 04-2501
However, she had not completed required year-end tasks
such as turning in her attendance records, lesson plan
books, and room keys, and cleaning out her classroom.
When she returned from vacation, Lifton attended an LSC
meeting on July 11, where she learned that the first item on
the council’s agenda was the renewal of Meuer’s contract.
Lifton previously had expressed her view that Meuer’s
contract should not be renewed by the LSC during the
summer, preferring that the committee address the matter
in the fall. In her opinion renewal of Meuer’s contract was
not a rush and other issues should be given priority. Ac-
cordingly, at the July 11 meeting, Lifton moved to form a
“vision committee” to evaluate Meuer and consider adding
terms to his contract; this motion was adopted. Lifton’s
kindergarten proposal was also raised at the July 11
meeting, and Meuer and Lifton met a few days later to
discuss it again.
Later in July, Lifton sent a third letter home—addressed
“Dear Kindergarten Friend” and sent to her students—in
which she described her trip to Mexico. Among other things,
she told the children that “a bird pooped” in her lap at a
restaurant and that her sister “got in big trouble for taking
things that don’t belong to her.” This letter also troubled
Meuer; he had not seen it in advance and questioned
whether the content of the letter was appropriate for a
letter from a teacher.
Meuer met with Lifton and her union representative on
August 28, 2002. The meeting lasted more than an hour,
although they did not finish their business that day and
no discipline was ever initiated by Meuer. The same day,
however, in separate proceedings, the Chicago Board of
Education issued a “warning resolution” to Lifton, recom-
mending a fifteen-day suspension. The warning resolution
cited twelve deficiencies in Lifton’s performance, mostly
relating to the sending of unauthorized and inappropriate
letters home, as well as her failure to grade student report
No. 04-2501 5
cards and finish year-end duties. The warning resolution
was recommended by defendant Arne Duncan, the chief
executive of the Chicago Public Schools. Duncan testified in
an affidavit that he had no knowledge about the predis-
ciplinary meeting at the school between Lifton and Meuer,
nor did he know that Lifton had opposed the early renewal
of Meuer’s contract.
Lifton kept teaching for approximately two weeks after
the warning resolution was issued. On September 12 she
attended parents’ night at the school; the assistant princi-
pal was in her classroom observing her interaction with
parents. That same night the LSC held a meeting at which
Lifton told council members that she was the victim of a
“witch hunt” because she had not supported Meuer’s early
contract renewal. Lifton taught her class the next day (a
Friday), but thereafter did not return to school, first taking
a personal day and then nine consecutive sick days. After
the fifth sick day, the assistant principal asked for a doc-
tor’s note, a request Lifton found upsetting. Lifton eventu-
ally went on medical leave through January 30, 2003, when
she resigned. She never served a suspension.
II. Discussion
Lifton contends that her discipline was retaliation for
First Amendment-protected speech, namely, her proposed
changes to the kindergarten program and her opposition to
Meuer’s early contract renewal. She also claims that she
was denied due process of law, defamed, and subjected to
intentional infliction of emotional distress. Our review of
the district court’s grant of summary judgment is de novo.
Russell v. Harms, 397 F.3d 458, 462 (7th Cir. 2005).
A. Retaliation Claim
A three-step analysis applies to Lifton’s retaliation claim:
6 No. 04-2501
(1) was her speech constitutionally protected; (2) if so, was
the defendants’ action against her motivated by her consti-
tutionally protected speech; and (3) if she can show that her
constitutionally protected speech was a substantial or
motivating factor in the defendants’ action against her, can
the defendants show that they would have taken the same
action in the absence of her exercise of her First Amend-
ment rights? Vukadinovich v. Bd. of Sch. Trs. of N. Newton
Sch. Corp., 278 F.3d 693, 699 (7th Cir. 2002). The first two
inquiries make up a plaintiff’s prima facie retaliation case,
and the third allows an employer to rebut that case by
showing that it would have taken the adverse employment
action regardless of the plaintiff’s protected speech. If the
employer carries its burden in the third step of the analysis,
then the burden shifts back to the plaintiff to show that the
proffered reasons for the employment action were
pretextual. Id.The parties agree that Lifton has satisfied the first
prong—that her speech regarding the early renewal of
Meuer’s contract and restructuring Norwood Park’s kinder-
garten program was constitutionally protected.1 Turning
then to the second factor in the analysis, Lifton must come
forward with some evidence to show that her constitution-
ally protected speech was a substantial or motivating factor
behind the disciplinary action taken against her. It is not
enough to rely on the mere fact that the discipline chrono-
logically followed the protected activity. Smith v. Dunn, 368
F.3d 705, 708 (7th Cir. 2004); see also Wright v. Ill. Dep’t of
1
That is to say, the defendants have conceded that the speech
touched on matters of public concern, and they do not argue that
the school’s interest in promoting efficient and effective public
service outweighs Lifton’s interest in speaking. Pickering v. Bd. of
Educ. of Township High Sch. Dist. 205, Will County, Ill., 391 U.S.
563, 568 (1968); Gustafson v. Jones, 290 F.3d 895, 909 (7th Cir.
2002).
No. 04-2501 7
Children & Family Servs., 40 F.3d 1492, 1500-01 (7th Cir.
1994) (courts generally cannot “draw strong conclusions
from the mere fact that protected speech may have preceded
an adverse employment decision”). The typical retaliation
case involves a whistleblower or disgruntled employee who
threatens the status quo in such a way that a supervisor
might logically want to silence the whistleblower’s voice.
See, e.g., Gazarkiewicz v. Town of Kingsford Heights, 359
F.3d 933, 936 (7th Cir. 2004) (posting fliers criticizing public
works superintendent for delayed response to hazardous
material spill); Ceballos v. Garcetti, 361 F.3d 1168, 1176
(9th Cir. 2004) (disclosing misrepresentations in sheriff’s
deputy’s warrant application); Martinez v. Tex. Dep’t of
Criminal Justice, 300 F.3d 567, 570 (5th Cir. 2002) (report-
ing a prison beating); Gonzales v. Dallas County, 249 F.3d
406, 407 (5th Cir. 2001) (testifying about bribes); Barker v.
City of Del City, 215 F.3d 1134, 1139 (10th Cir. 2000)
(criticizing city council for violations of the law); Vasbinder
v. Scott, 976 F.2d 118, 119-20 (2d Cir. 1992) (alerting law
enforcement to potential embezzlement).
The central retaliatory action Lifton complains about is
the warning resolution issued on August 28, 2002, by the
Chicago Board of Education. That resolution cited her for
sending unauthorized and inappropriate correspondence to
parents and students; failing to grade report cards, instead
telling parents to grade their own children; and failing to
complete other year-end tasks.2 To meet the second prong
of her prima facie case, Lifton must show that this warning
resolution was motivated by her speech about either
2
There is some dispute whether Lifton knew about the school’s
policy that required letters to parents be cleared with the prin-
cipal in advance. The relevant issue, however, is the defendants’
motivation, not what Lifton knew, and she does not argue that the
Board was not entitled to enforce the policy.
8 No. 04-2501
Meuer’s contract or her kindergarten proposals.3
As to the first of these categories of protected speech,
Lifton has presented no evidence connecting the Board’s
warning resolution to the views Lifton expressed about
Meuer’s early contract renewal. We note as an initial
matter that Lifton did not actually oppose the renewal of
Meuer’s contract; she proposed, rather, that the LSC post-
pone consideration of the issue until later in the year, after
an evaluation by a “vision committee” could be conducted.
That fact dilutes the notion that Lifton’s speech about
Meuer’s contract motivated the Board’s disciplinary action.
More important, however, is Lifton’s inability to point to
any evidence linking her speech on the contract renewal
issue to the warning resolution issued by the Board.
Duncan, the district executive who recommended that the
Board issue the warning resolution, had no knowledge of
Lifton’s expressed views on the early renewal of Meuer’s
contract, a fact that Lifton has conceded. See Carreon v. Ill.
Dep’t of Human Servs., 395 F.3d 786, 792 (7th Cir. 2005)
(although union advocacy might qualify as protected speech,
“there is no evidence that any of the individual defendants
knew of her union involvement”).
3
Lifton never served a suspension and therefore never suffered
any tangible harm—loss of pay or benefits, for example—as a
result of the warning resolution. We recognize that “courts have
declined to find that an employer’s actions have adversely affected
an employee’s exercise of his First Amendment rights where the
employer’s alleged retaliatory acts were criticism, false accusa-
tions, or verbal reprimands.” Suarez Corp. Indus. v. McGraw, 202
F.3d 676, 686 (4th Cir. 2000). But because “the injury alleged . . .
need not be great in order to be actionable,” Bart v. Telford, 677
F.2d 622, 625 (7th Cir. 1982), we proceed by assuming without
deciding that the warning resolution’s recommendation of a
fifteen-day suspension, even though it was not actually served,
could constitute a sufficiently adverse employment action so as to
give rise to a retaliation claim. See Spiegla v. Hull, 371 F.3d 928,
941 (7th Cir. 2004).
No. 04-2501 9
The remainder of Lifton’s retaliation case focuses on her
speech advocating restructuring the kindergarten program,
and she claims to have direct evidence of Meuer’s desire to
punish her for the ideas she expressed. Meuer took notes of
the meetings at which Lifton’s proposals were discussed.
One note reads: “I meet with Mrs. Lifton to get the details
prior to the LSC meeting. There are points of disagree-
ment.” Another reads: “The LSC meeting is rather heated.
At the conclusion of the meeting I went to Mrs. Lifton and
shared that we must meet on Monday, July 15th.” Lifton
argues that these notes demonstrate that her speech about
the kindergarten program was the motivating factor behind
the warning resolution.
To the contrary, however, when read in more complete
context, Meuer’s notes do not bear out Lifton’s claim of
retaliatory motivation related to her speech in favor of kin-
dergarten restructuring. Rather, the notes in their totality
reflect concern about Lifton’s repeated sending of unautho-
rized and inappropriate communications to parents and
students, prompted in part by the negative reactions of
parents:
6/25/02 Communication from Mrs. Lifton is enclosed in
each students’ [sic] report card. Parents are in my
office, phone calls are received.
6/25/02 P.M. I meet with Mrs. Lifton and share my
frustration and the concern parents and others have
expressed.
6/27/02 I receive another communication from
Mrs. Lifton.
....
7/17/02 I am made aware that Mrs. Lifton has sent
another letter to the children in her class. Questions of
concern from some parents are expressed. Concern is
focused on the language. This is most concerning as I
had told Mrs. Lifton on the 16th not to sen[d] another
10 No. 04-2501
letter to parents. Could we drop it?!!!
In any event, nothing in Meuer’s notes provides the
required link between Lifton’s proposal to change the
kindergarten program and the Board’s disciplinary action
against her. The notes reflect that Meuer (and perhaps
others) disagreed in whole or in part with Lifton’s ideas for
revamping kindergarten at Norwood Park, but there is no
evidence connecting that disagreement to the warning
resolution issued by the Board. The only evidence even
arguably close is the fact that the warning resolution was
premised in part on the unauthorized June 11 flyer, which
invited parents to the LSC meeting for a “sneak peak [sic]
at next year’s kindergarten program.” But it was the uni-
lateral and unauthorized nature of the flyer that prompted
the discipline, not the fact that Lifton was speaking out
about restructuring the kindergarten program; there is no
evidence to suggest that Lifton was being punished for
communicating her ideas about changing the school’s
kindergarten program.4 The flyer merely announced the
meeting and invited attendance; it did not contain the sub-
stance of Lifton’s proposals. Without any evidence tending
to show that her speech proposing changes to the kindergar-
ten program was a motivating factor behind the warning
resolution issued by the Board, Lifton cannot establish her
prima facie case of retaliation.
Lifton’s case also fails the third step in the analysis (as-
suming there was evidence of retaliatory motive); she has
not produced evidence that the Board’s stated reasons for
the warning resolution were pretextual. Vukadinovich, 278
4
In its entirety the flyer read: “It’s not working . . . But we can
fix it! Be a part of history in the making. Take a sneak peak [sic]
at next year’s kindergarten program. Thursday, June 13, 2002.
6:00 P.M. School library. Regretfully babysitting will not be pro-
vided.”
No. 04-2501 11
F.3d at 699. The burden is first on the defendants to show
a legitimate justification for Lifton’s discipline—that is,
that she would have received the warning resolution re-
gardless of her protected speech. If the defendants carry
that burden, then Lifton must show that the defendants’
proffered reasons for disciplining her were a pretext for re-
taliation against her protected speech. Id.
As we have noted, the warning resolution issued by the
Board cited Lifton for unauthorized and inappropriate
communications to parents and students and failure to
grade her students’ report cards and complete certain other
year-end duties. Lifton does not argue that these reasons
were illegitimate or false. Lifton suggests that the fifteen-
day recommended suspension was harsher than other
punishments generally handed down by the Board. Even
assuming this to be true, it does not follow that the reasons
cited by the Board were pretextual. Lifton gave her superi-
ors several ample and legitimate reasons to discipline her.
To accept Lifton’s argument would be to substitute our
judgment about the appropriate level of discipline for that
of the Board and its chief executive; absent some evidence
of retaliatory motivation for the discipline imposed, it is
improper for us to second-guess this sort of employment
decision. See Alexander v. Wis. Dep’t of Health & Family
Servs., 263 F.3d 673, 683 (7th Cir. 2001) (federal courts are
not to act as “super-personnel boards”). The district court
properly granted summary judgment for the defendants on
Lifton’s retaliation claim.
B. Due Process
Lifton also claims she was deprived of a protected prop-
erty interest without due process because her prediscipli-
nary meeting with Meuer was a “sham.” As we have noted,
however, Lifton never served the suspension recommended
by the Board, nor did she forfeit any pay or benefits to
which she otherwise would have been entitled. An unserved
12 No. 04-2501
suspension with no pecuniary consequences does not give
rise to a due process claim. Deen v. Darosa, No. 04-2072,
2005 WL 1593372 (C.D. Ill. July 8, 2005); Luellen v. City of
East Chicago, 350 F.3d 604, 613-14 (7th Cir. 2003);
Townsend v. Vallas, 256 F.3d 661, 676 (7th Cir. 2001);
Swick v. City of Chicago, 11 F.3d 85, 86 (7th Cir. 1993).
Lifton argues in the alternative that she was construc-
tively discharged and that this “discharge” constitutes a
deprivation of a property interest without due process.
Constructive discharge occurs when an employee resigns
because working conditions are so intolerable that a rea-
sonable employee would feel compelled to quit. Hunt v. City
of Markham, 219 F.3d 649, 655 (7th Cir. 2000). The doctrine
of constructive discharge is limited to egregious cases, such
as, for example, where an employee is subjected to threats
or repeated racist taunting. Tutman v. WBBM-TV, Inc., 209
F.3d 1044, 1050 (7th Cir. 2002).
Lifton’s complaints do not come close to describing a
workplace so intolerable that a reasonable person would
feel compelled to quit. For example, Lifton characterizes the
infractions underlying the warning resolution as “pet-
ty”—proof, she says, that the defendants were “grasping at
anything to pin on” her. She complains about being “moni-
tored” by the assistant principal during the September 12
parents’ night at the school. She asserts that the LSC
chairman was rude to her during a meeting and that Meuer
“allowed” this to happen.5 Lifton also contends that the
demand for a doctor’s note after five consecutive sick days
5
Lifton complains that at the LSC meeting in question, the
LSC chairman rolled his eyes, made sarcastic comments, and
interrupted Lifton while she was speaking. Never mind the trivial
nature of this conduct, it is not at all linked to any of the defen-
dants except under the fanciful theory that Meuer “allowed” such
insufferable things to happen.
No. 04-2501 13
was unreasonable. She alleges that Meuer “harassed” a
parent who supported her, although she does not describe
the alleged “harassment.” She complains that Meuer directed
a custodian to discard her “things, including personal
things, supplies, and educational materials,” and that the
custodian instead hid them in a closet; she does not elabo-
rate on the timing or circumstances of the principal’s
directive to the custodian. These are trifling hardships and
undifferentiated allegations of “harassment” that do not
support a case for constructive discharge. Summary judg-
ment dismissing Lifton’s due process claim was appropriate.
C. Defamation
Lifton also claims that Meuer defamed her when he told
the assistant principal and a parent that she was “lazy,”
“burnt out,” “looking for sympathy,” “unstable,” “resting on
her laurels,” and “doesn’t want to work.” Lifton claims these
statements were defamatory per se under Illinois law, which
recognizes a per se cause of action for defamation when the
defamatory statements are so serious that reputational
injury may be presumed. Defamation per se claims include
falsely accusing someone of committing a crime, falsely
accusing someone of having a “loathsome communicable
disease,” or, as is pertinent to Lifton’s case, falsely imputing
an inability to perform or want of integrity in the duties of
office, employment, or profession. Van Horne v. Muller, 705
N.E.2d 898, 903 (Ill. 1998).
Vague, unprovable statements and statements of opinion
do not give rise to a defamation claim, however; Illinois law
requires that the allegedly defamatory statement must
contain an objectively verifiable factual assertion. Wynne v.
Loyola Univ., 741 N.E.2d 669, 676 (Ill. App. Ct. 2000). The
district court concluded that Meuer’s comments do not meet
this requirement, and a case Lifton cites proves the point.
In Schivarelli v. CBS, Inc., the Illinois Supreme Court noted
14 No. 04-2501
that calling someone a “crook” or “incompetent” had been
held nonactionable because such bare statements contain
no verifiable factual information. 776 N.E.2d 693, 698 (Ill.
App. Ct. 2002) (citing Dubinsky v. United Airlines Master
Executive Council, 708 N.E.2d 441 (Ill. App. Ct. 1999), and
Hopewell v. Vitullo, 701 N.E.2d 99 (Ill. App. Ct. 1998)).
Similarly, the court held, the assertion that the plaintiff in
Schivarelli was “cheating the city” was not actionable,
without more, because the speaker “did not explain the
evidence that she was referring to, nor did she state why
she thought [the plaintiff] was cheating the city, how he
was cheating the city, or even what she meant by the term
‘cheating.’ ” Schivarelli, 776 N.E.2d at 698.
We agree with the district court’s conclusion that Meuer’s
offhand statements were nonactionable statements of opin-
ion that do not contain objectively verifiable factual asser-
tions. Summary judgment on Lifton’s defamation claim was
properly granted.
D. Intentional Infliction of Emotional Distress
Lifton’s final claim is for intentional infliction of emo-
tional distress premised upon the issuance of the warning
resolution and the other alleged “harassment” described
above. To state a claim for intentional infliction of emo-
tional distress, a plaintiff must show that: “(1) defendants’
conduct was extreme and outrageous; (2) defendants either
intended to inflict severe emotional distress or knew that
there was a high probability that their conduct would do so;
and (3) the defendants’ conduct actually caused severe
emotional distress.” Thomas v. Fuerst, 803 N.E.2d 619, 625
(Ill. App. Ct. 2004). “Severe emotional distress” is distress
so severe that no reasonable person could be expected to
endure it. Id.Our evaluation of Lifton’s emotional distress claim
parallels our analysis of her constructive discharge claim.
No. 04-2501 15
Asking whether Lifton’s working conditions were intolera-
ble and beyond that which a reasonable person could be
expected to endure is basically the same as asking whether
the emotional distress allegedly inflicted upon her was
beyond that which a reasonable person could be expected to
endure. Lifton’s emotional distress claim fails for the same
deficiencies that were fatal to her constructive discharge
claim. In addition, the defendants’ conduct cannot reason-
ably be characterized as extreme and outrageous— “so
extreme as to go beyond all possible bounds of decency and
be regarded as intolerable in a civilized community.”
Feltmeier v. Feltmeier, 798 N.E.2d 75, 83 (Ill. 2003). Sum-
mary judgment dismissing Lifton’s claim for intentional
infliction of emotional distress was properly granted.
For the foregoing reasons, the judgment of the district
court is AFFIRMED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—7-22-05