Kodl, Karen v. Bd Educ School 45 ( 2007 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-3306
KAREN KODL,
Plaintiff-Appellant,
v.
BOARD OF EDUCATION SCHOOL
DISTRICT 45, VILLA PARK,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 05 C 3837—Amy J. St. Eve, Judge.
____________
ARGUED APRIL 5, 2007—DECIDED JUNE 4, 2007
____________
Before EASTERBROOK, Chief Judge, and BAUER and
WOOD, Circuit Judges.
BAUER, Circuit Judge. In 1987, the Board of Education
School District 45, Villa Park (the “School District”), hired
Karen Kodl as a physical education teacher at Jackson
Middle School. In 2004, the School District transferred her
to Schafer Elementary School, where she is currently
employed. Following her transfer, Kodl, then forty-seven
years of age, sued the School District alleging sex discrimi-
nation and retaliation under Title VII of the Civil Rights
Act of 1964, 42 U.S.C. § 2000e et seq., and age discrimina-
2 No. 06-3306
tion and retaliation under the Age Discrimination in
Employment Act of 1967 (“ADEA”), 29 U.S.C. § 621 et seq.
The district court granted defendant’s motion for summary
judgment. We affirm.
I. Background
Kodl’s allegations revolve around the following incidents:
When the P.E. Team Leader at Jackson Middle School
retired in 2002, Anthony Palmisano, the principal, divided
the P.E. Team Leader position into two separate positions:
“Team Leader” and “Athletic Director.” Kodl applied for
both positions, and other P.E. teachers applied for each
position. Kodl was awarded the position of Team Leader,
but she rejected the offer. She then filed a grievance based
on her belief that the division of the Team Leader position
violated the collective bargaining agreement between the
School District and the union. The following year, Kodl did
not apply for either position. The positions were consoli-
dated and awarded to a male under forty years of age.
Around December 10, 2003, Linda Rajca, another P.E.
teacher, submitted a written complaint about Eric Willis,
a male under the age of forty, who was a mathematics
teacher and also taught P.E. classes. Rajca’s complaint
described three examples of Willis’s conduct: (1) he and
another P.E. teacher wanted to use the gym for boys
basketball teams during girls volleyball intramurals; (2) he
had students relay “snotty” messages to Kodl; and (3) he
was “very unprofessional and very demeaning” at a
meeting he requested with Rajca and Kodl. Palmisano and
Carol Hogsfelt, the Assistant Superintendent of Human
Resources for the School District, immediately investigated
the claims, interviewing every witness, including Kodl.
They concluded that Rajca’s complaints did not constitute
sexual harassment or general harassment, and at worst,
No. 06-3306 3
involved petty misunderstandings. The School District
asserts, and Kodl disputes, that it issued Willis a verbal
warning against engaging in inappropriate conduct.
Kodl claims that Willis harassed her during volleyball
matches and that she reported such conduct to Palmisano
at the end of February 2004. Palmisano denies that Kodl
reported any purported harassment to him at that time.
In March 2004, Rajca and Kodl accused Tisha Alvarez,
an under forty years of age P.E. teacher, of stealing petty
cash from the girls’ locker room. Alvarez denied stealing
the money. Following an investigation, Palmisano was
unable to reach a conclusion as to whether money was
missing from the girls’ P.E. department and whether
Alvarez had stolen any money. Palmisano told Kodl and
Rajca that there was no proof of any missing money.
Kodl says that at a March 2004 meeting, Palmisano told
her that she was the problem in the P.E. department and
that she had “better change or watch out.” Palmisano
denied making such statements but admitted raising the
issue that other teachers and staff members had expressed
concerns about Kodl.
Around April 6, 2004, Willis notified Palmisano that
Kodl and Rajca had attempted to secretly tape record him.
Interview notes from a recorded meeting between Kodl and
Palmisano indicated that Kodl admitted that she had tried
unsuccessfully to tape record Willis. As a result of this
incident, Kodl received a written reprimand for her
behavior, and Rajca received a written reprimand for
failing to report the incident. Kodl claims, while the School
District denies, that Alvarez was involved in the tape-
recording incident. Alvarez did not receive a written
reprimand.
At a meeting in April 2004, six teachers complained to
Palmisano and other administrators about the behavior of
4 No. 06-3306
Kodl and Rajca and unanimously requested that they be
“split up.”
On April 30, 2004, Palmisano gave Kodl an overall rating
of “satisfactory” in her performance evaluation. He wrote
“[t]he area of most concern is that of professionalism. You
have not conducted yourself in a professional manner in
several instances.” He listed examples of Kodl’s unprofes-
sional conduct: (1) interacting with secretaries and other
staff members in a manner that made them uncomfortable;
(2) attempting to tape-record a co-worker; and (3) crying
while on the phone with Palmisano after not being invited
to play in a volleyball game.
After these events, the School District decided to trans-
fer Kodl from Jackson Middle School to Schafer Elemen-
tary School. The transfer memorandum stated that “[t]his
transfer is the result of your demonstrated failure to relate
in a positive manner with other teachers at Jackson
Middle School.” After receiving the notification, Kodl
filed five grievances, including one asserting age and sex
discrimination. Union representatives concluded that her
grievances were without merit and refused to pursue them.
When a position opened up in the P.E. department at
Jackson Middle School in October 2004, Kodl requested a
transfer back to the school. The School District denied her
request and hired a woman under forty to fill the position.
After Kodl filed her suit, the School District moved for
summary judgment, which the district court granted. The
district court held that even if Kodl could establish a
prima facie claim of discrimination, she could not show
that the School District’s reasons for transferring her were
a pretext for discrimination. The district court also found
that Kodl could not establish a prima facie case of retalia-
tion because she had not engaged in protected activity, and
even if she had engaged in protected activity, she failed to
establish causation and pretext. Kodl filed this timely
appeal.
No. 06-3306 5
II. Discussion
We review a district court’s decision to grant summary
judgment de novo. Cengr v. Fusibound Piping Sys., 135
F.3d 445, 450 (7th Cir. 1998). Summary judgment is
proper when “the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to
material fact and that the moving party is entitled to a
judgment as a matter of law.” Fed. R. Civ. P. 56(c).
A. Age and Gender Discrimination
Kodl first challenges the district court’s determination
that she could not show that the School District’s reasons
for transferring her were a pretext for discrimination. To
prevail on her claims of age and gender discrimination,
Kodl is required to show that the School District’s reasons
for transferring her were a pretext. McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 804, 93 S. Ct. 1817, 36 L. Ed.
2d 668 (1973). “A pretext . . . is a deliberate false-hood.”
Forrester v. Rauland-Borg Corp., 453 F.3d 416, 419 (7th
Cir. 2006) (citations omitted). “[T]o show pretext, [plaintiff]
must show more than [defendant’s] decision was mistaken,
ill considered or foolish, [and] as long as [the employer]
honestly believes those reasons, pretext has not been
shown.” Hague v. Thompson Distrib. Co., 436 F.3d 816, 823
(7th Cir. 2006) (internal quotations omitted). “The only
concern in reviewing an employer’s reasons for termination
is the honesty of the employer’s beliefs.” Forrester, 453
F.3d at 419 (quoting Balderston v. Fairbanks Morse Engine
Division, 328 F.3d 309, 323 (7th Cir. 2003)).
The School District asserts that it transferred Kodl
because she was not getting along with her co-workers at
Jackson. On appeal, Kodl argues that this reason is a
pretext for discrimination because of the vastly more
6 No. 06-3306
favorable treatment Willis and Alvarez received as com-
pared to Kodl. Specifically, Kodl claims that both Willis
and Alvarez engaged in misconduct without discipline. As
the district court recognized, however, there is no evidence
that Willis and Alvarez engaged in misconduct. Willis
denies he engaged in the conduct of which he was accused.
And, the School District’s investigations confirmed that
position and further found that Alvarez had not partici-
pated in the tape recording incident. Moreover, Kodl
admitted that she engaged in unprofessional conduct in
attempting to tape record a co-worker. Kodl has not shown
pretext, and the district court did not err in granting
summary judgment on Kodl’s sex and age discrimination
claims.
B. Retaliation
Kodl next claims that the district court erred by entering
summary judgment on her retaliation claims. A prima
facie case of retaliation may be made directly or indirectly.
Under the direct method, a plaintiff must show (1) she
engaged in statutorily protected activity; (2) she suffered
an adverse employment action taken by the employer; and
(3) a causal connection between the two. Moser v. Ind.
Dep’t of Corr., 406 F.3d 895, 903 (7th Cir. 2005). Under the
indirect method, plaintiff must show that she (1) engaged
in statutorily protected expression, (2) met the employer’s
legitimate expectations, (3) suffered an adverse employ-
ment action, and (4) was treated less favorably than
similarly situated employees who did not engage in
statutorily protected expression. Tomanovich v. City of
Indianapolis, 457 F.3d 656, 663 (7th Cir. 2006).
The district court found that Kodl could not establish a
prima facie case of retaliation under either a direct or an
indirect method because she did not engage in protected
expression, and even if she had, she failed to establish
pretext. We agree.
No. 06-3306 7
To constitute protected expression, “the complaint must
indicate the discrimination occurred because of sex, race,
national origin, or some other protected class. Merely
complaining in general terms of . . . harassment, without
indicating a connection to a protected class or providing
facts sufficient to create that inference, is insufficient.”
Tomanovich, 457 F.3d at 663 (citations omitted). Neither
Kodl’s grievance regarding the Team Leader position nor
her participation in Rajca’s written complaint constitute
protected expression. During her deposition, Kodl stated
that her grievance regarding the Team Leader position had
nothing to do with age or gender discrimination. Further,
Rajca’s written complaint did not assert claims of age or
sex discrimination but only harassment in general. In
conjunction with Rajca’s complaint, Kodl claims that she
made an informal complaint about inappropriate com-
ments made by Willis that she later charactered as “silly.”
“Silly” comments are not the stuff (generally speaking)
that violate Title VII or the ADEA.
Additionally, the district court held that Kodl could not
establish a causal link in support of her retaliation claim.
“[S]uspicious timing alone rarely is sufficient to create a
triable issue.” Moser, 406 F.3d at 905. A temporal proxim-
ity between Kodl’s claimed protected activities and her
transfer, standing alone, does not establish the requisite
causal connection. Kodl presents no evidence of causation
other than a chronology of the events leading up to her
transfer. The district court did not err.
III. Conclusion
For the foregoing reasons, we AFFIRM the judgment of
the district court.
8 No. 06-3306
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—6-4-07