Sharon Lucero v. Nettle Creek School Corporatio ( 2009 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 08-2943
S HARON A. L UCERO ,
Plaintiff-Appellant,
v.
N ETTLE C REEK S CHOOL C ORPORATION, et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. 1:05-CV-0266—Richard L. Young, Judge.
A RGUED A PRIL 10, 2009—D ECIDED M AY 29, 2009
Before B AUER, F LAUM, and E VANS, Circuit Judges.
F LAUM, Circuit Judge. Plaintiff Sharon Lucero taught
English to 12th grade students during the 2003-04 school
year. In the summer of 2004, she was assigned to teach
English to 7th graders instead. Following her reassignment,
Lucero filed discrimination charges against her school
system, its administrators, and members of the school
2 No. 08-2943
board of trustees. Lucero brought eleven separate claims.
The district court granted summary judgment for defen-
dants on all claims. Lucero appealed, and we now affirm.
I. Background
The Hagerstown, Indiana Junior-Senior High School
(“Junior-Senior High School”) is a public school that serves
students in grades 7 through 12 in one building. The
Junior-Senior high school is part of the Nettle Creek School
Corporation (“School Corporation”), which is governed by
a seven-member board of trustees. At all relevant times, Joe
Backmeyer was the superintendent of the School Corpora-
tion. Mark Childs was the principal of the Junior-Senior
High School, and Bill Bunger was the assistant principal.
In 2001, Lucero, a female of Hispanic national origin,
interviewed for a position in the English Department at the
Junior-Senior High School. Lucero was certified to teach
English to students in grades 6 through 12, and during her
employment interview Childs informed Lucero that she
could be assigned to teach English in any grade at the
Junior-Senior High School. Childs recommended to the
board of trustees that the School Corporation hire Lucero,
which it did. In August 2001, Lucero entered into a written
teacher’s contract for the 2001-02 school year. Lucero
became a member of the Nettle Creek Classroom Teachers
Association. A collectively bargained agreement between
that association and the School Corporation governs the
terms and conditions of Lucero’s employment.
For the 2001-02 school year, Childs assigned Lucero to
teach 7th grade English, Yearbook, and Newspaper
No. 08-2943 3
courses. Lucero’s performance review for that year was
positive, and the school renewed her contract for the 2002-
03 school year. In 2002-03, Lucero taught 8th grade English,
Yearbook, and Newspaper. Her performance for that year
was reviewed positively as well, and the School Corpora-
tion renewed her contract for 2003-04.
For 2003-04, Junior-Senior High School administrators
decided to offer for the first time an Honors/Advanced
Placement English course to Seniors. Lucero requested that
Childs assign her to teach the new Honors/AP course as
well as an additional English 12 course. Childs granted this
request, and for the 2003-04 school year, he assigned
Lucero to teach English 12, Honors/AP English, Yearbook,
and Newspaper. In the summer of 2003, in preparation for
the Honors/AP course, Lucero attended a three-day
workshop at Ball State University. She also attended a
“High Schools that Work” conference that summer.
Childs commenced teaching English 12 and Honors/AP
English in Fall 2003. In November 2003, Childs observed
Lucero in the classroom, which was a customary compo-
nent of the annual teaching performance evaluation. Childs
included his observations in a teacher visitation report. In
his report, Childs noted that, in his opinion, Lucero did not
use her classroom time efficiently. He noted one particular
incident in which he felt Lucero spent an inordinate
amount of time answering a student’s question, during an
interviewing skills exercise, that she “share something
deep” about herself. Rather than ask the student a follow-
up question to more precisely pinpoint the focus of the
request, Lucero spoke for approximately ten minutes about
4 No. 08-2943
a 1994 incident in which she and her husband were
stopped by police. She opined: “What was that all about?
To us it was about discrimination. But it could have been
due to us having Texas plates, and state road 70 being a
drug pipeline. . . . The cop viewed it one way and we
viewed it another.” Childs met with Lucero to discuss his
report. During the discussion, Childs questioned Lucero as
to why Lucero embarked on a ten minute dialogue. He
continued: “The interviewer asked only one broad question
and received much information. To use this as an opportu-
nity to model the assignment you need to make the
interviewer ask you more questions in order to get infor-
mation. Most students will not ‘run’ with one question as
you were able to do.” During the meeting, Lucero alerted
Childs that two male students had made inappropriate
remarks to her, including “Dirty Mexican” and “Is this how
they do it in Mexico?” Although Lucero did not believe
that Childs adequately addressed these remarks, she did
not fill out a disciplinary referral form, and she “handled
[the situation] within the classroom.”
In December 2003, members of Lucero’s Honors/AP class
met with Childs to complain that Lucero assigned a paper
that she required them to complete in a short time period
that coincided with several semester exams. Childs re-
sponded by defending Lucero and telling students that
they would be able to complete the assignment if they used
their time efficiently.
In Spring 2004, a parent of a student in Lucero’s Hon-
ors/AP class complained to Childs about the number of
points Lucero was attributing to a certain portfolio project.
No. 08-2943 5
Childs suggested that the parent contact Lucero directly to
try to resolve the parent’s complaint. Lucero and the parent
spoke but were unable to reach a resolution to the dis-
agreement, and they ultimately “agreed to disagree,”
according to Lucero. Also in Spring 2004, an entire class of
students met with Lucero and complained that her instruc-
tions were unclear. Lucero denied the complaint and stated
that she gave clear instructions. In May 2004, some of
Lucero’s students and their parents voiced additional
concerns to Childs regarding Lucero’s teaching practices.
On May 6, 2004, during Lucero’s English 12 class, student
Jacob Brockman held up a photograph of student Garrett
Fisher’s naked buttocks to the class (the “Fisher-Brockman
incident”). Lucero immediately wrote a referral regarding
the Fisher-Brockman incident to assistant principal Bunger.
She discussed the referral with Bunger on the next day. She
told Bunger she would try to handle the matter on her
own, but she asked if she could turn the referral form into
him if she decided she was uncomfortable handling the
incident. Bunger responded, “Yes, put them in my mail-
box.” On May 10, Lucero notified Bunger that she wanted
him to handle the Fisher-Brockman incident. Bunger told
Lucero he would investigate her referral after he completed
some expulsion matters.
On May 13, Childs informed Lucero he had received an
email alleging that she had allowed a cell phone with a
picture of a penis to be passed around her classroom.
Lucero denied the accusation, and nothing ever came of the
incident.
After learning of the cell phone allegation, Lucero
emailed Bunger, stating that she “would really like the
6 No. 08-2943
[Fisher-Brockman incident] taken care of as soon as
possible.” She expressed concern that if the administration
did not respond soon, “those seniors will think that they
can get away with anything . . . .” Lucero also sent an email
to Childs, complaining that the administration had not yet
addressed the Fisher-Brockman incident; that the credibil-
ity of the School Corporation’s policies was at risk; and that
the School Corporation was not supporting her efforts to
maintain a classroom environment conducive to learning.
Lucero sent a follow-up email to Childs approximately
thirty minutes later, in which she again complained about
the “lack of enforcement of school policy” regarding the
Fisher-Brockman incident and stated that she “wish[ed] to
avoid being accused of allowing sexual harassment to
fester in [her] classroom as well.”
On May 17, Lucero was teaching a class in the school’s
computer lab. Fisher walked into the lab and informed a
friend that Lucero had turned him in for his role in the
Fisher-Brockman incident. Lucero overheard Fisher’s
conversation. After Lucero asked him to leave her class-
room three times, Fisher announced, “I’m leaving.” The
entire incident lasted approximately thirty seconds. Lucero
referred Fisher to Bunger’s office for discipline.
On May 18, Bunger notified Lucero by email that stu-
dents “X” and “Y” (Fisher and Brockman) were suspended
from school for two days for their involvement in the
Fisher-Brockman incident.
On May 19, three students placed 20 Playboy magazines
in Lucero’s classroom. Lucero reported the incident to
Bunger. Following the Playboy incident, Lucero emailed
No. 08-2943 7
Backmeyer, Childs, Bunger, and Deborah Brogan, the
president of the Nettle Creek Classroom Teachers Associa-
tion, noting that she considered the Playboy incident to be
“harassment of a teacher.” She stated that “pranks are
common, but the types of issues that are surfacing condone
a negative and hostile environment for women.” On that
same day, Bunger informed Lucero that the three students
involved in the Playboy incident received out-of-school
suspensions. The students then apologized to Lucero and
told her they did not mean to hurt her. They stated that
they only placed the magazines in her classroom because
she had been absent from work the day before and “they
couldn’t resist.”
On May 25 (the Seniors’ last day of school), Lucero
emailed Childs and Bunger to inform them that toward the
end of class Fisher had asked her, “How come you turned
in my photo? . . . It was no big deal.” In her email, Lucero
expressed frustration at what she perceived as the adminis-
tration’s failure to view the Fisher-Brockman incident and
her subsequent confrontation with Fisher in the computer
lab as more than mere childish pranks. At the end of the
email, Lucero stated, “I consider what Garrett Fisher did to
me in the computer lab harassing. It is harassment. . . . This
is a complaint I am submitting to the office and there is
only one day left in school to handle it.” Several days later,
Bunger informed Lucero that he counseled Fisher in
response to her complaint.
At the end of the school year, Childs informed Lucero
that he was not sure she had the personality to teach
English to Seniors, and he was considering reassigning her.
8 No. 08-2943
On June 4, 7, and 9, 2004, Childs, Brogan, Lucero, and
English Department Chairperson Kent Gray participated
in a series of meetings regarding Lucero’s next teaching
assignment. During those meetings, Childs informed
Lucero that her pacing in Senior English was problematic
and that he had received several complaints from parents
and students about problems in her classroom during the
2003-04 school year. Childs also told Lucero that her
personality and teaching style were not conducive to
teaching Seniors, and that she was better suited to teaching
Junior High students. Lucero responded that Childs was
moving her because she had asked him “to do something
about” the Fisher-Brockman and Playboy incidents. Lucero
also asked whether bias may be a factor, and reminded him
of the derogatory remarks made by two students, including
the “Dirty Mexican” remark. Childs did not respond to her
inquiry. Childs told Lucero that he would not reassign her
from teaching Seniors unless he could find someone who
had Advanced Placement training or was otherwise more
qualified to teach the Senior courses.
Brogan told Childs that if he did reassign Lucero, the
teachers association and Lucero would consider the
reassignment a formal “reprimand.” The collective bar-
gaining agreement provides that “[r]eassignment and/or
transfer of an employee shall be made on the basis of
qualifications.”
Superintendent Backmeyer then posted a position for an
English teacher. Childs interviewed Aaron Chester, a white
male, for the position. At that time, Chester had never
taught a Senior English course, and he did not have
No. 08-2943 9
experience teaching Honors or AP courses. On June 30,
2004, Childs and Backmeyer decided that they wanted to
hire Chester as an English teacher at the Junior-Senior High
School because: (a) he had four years’ experience teaching
high school-aged students in other Indiana high schools
and had established a good rapport with those students;
(b) he had positive employment references from two other
school corporations; (c) he had a passion for British litera-
ture; (d) he had a pleasant, courteous, calm, and confident
personality; and (e) he was technologically savvy in the
classroom. On July 14, Backmeyer recommended to the
board of trustees that it hire Chester as an English teacher,
and the board approved this recommendation.
On the same day that it hired Chester, the board renewed
Lucero’s teaching contract for the 2004-05 school year. On
July 28, Childs informed Lucero in writing that he had
decided to assign her to teach 7th grade English, as well as
Yearbook and Newspaper, and that Chester would teach
English 12 and Honors/AP English for the 2004-05 school
year. Lucero would not lose any pay, benefits, or privileges
as a result of her reassignment to 7th grade English.
On July 29, 2004, Lucero filed a discrimination charge
with the Equal Employment Opportunity Commission,
alleging gender and national origin discrimination and
retaliation. She claimed that she was reassigned from
English 12 to English 7 because of her gender and in
retaliation for complaining about the alleged hostile work
environment created by students in her Senior English
classes. On September 15, 2004, Lucero filed a second
charge of discrimination with the EEOC, alleging the
10 No. 08-2943
School Corporation retaliated against her because Childs
met with her to discuss her tardiness to a meeting and
warned her that future attendance issues could result in
discipline. The EEOC ultimately dismissed both charges.
On August 4, Lucero, in conjunction with the teachers
association, filed a grievance under the School Corpora-
tion’s “just cause and appeal policy,” which prohibited the
School Corporation from “reprimanding” a teacher with-
out just cause. Lucero sought reinstatement to her position
as teacher of English 12 and Honors/AP English. On
November 5, 2004, Lucero’s grievance went to an arbitra-
tion hearing. The arbitrator dismissed the grievance on the
basis that her teaching reassignment was not a reprimand
and was not arbitrable.
On November 10, 2004, Backmeyer recommended that
the School Corporation repeal the just cause and appeal
policy because he felt the teachers association had misused
the policy. Prior to making his recommendation,
Backmeyer discussed the matter with a teachers association
discussion team, as required by the collective bargaining
agreement. That same day, the board repealed the policy at
issue.
In December 2004, Lucero received a “summative
evaluation form” from Childs. In that document, Childs
noted that Lucero, as primarily a 7th grade teacher, had
made progress in many areas, including her use of instruc-
tional time and her ability to motivate her students.
On January 26, 2005, Lucero filed a civil lawsuit against
her employer in the Wayne County, Indiana circuit court.
The lawsuit challenged the decision to reassign her to teach
No. 08-2943 11
7th grade English for the 2004-05 school year instead of
Senior English courses. Lucero challenged her teaching
reassignment under several legal theories, including
retaliation, discrimination, hostile work environment, and
breach of contract. Lucero alleged that she had incurred
about $1,630 in medical bills since 2003 for treatment for
physical and emotional stress as a result of defendants’
retaliatory actions. She alleged she incurred additional
financial harm obtaining training to teach Seniors. On
February 24, 2005, defendants removed the civil rights suit
to federal district court in Indianapolis, Indiana.
On March 29, 2007, defendants filed a motion for sum-
mary judgment with respect to all of Lucero’s claims. After
receiving extensions of time for her to respond to this
motion, Lucero filed a “motion for leave to file brief in
excess of thirty-five pages,” which the district court
granted. On August 17, 2007, Lucero filed a brief that was
147 pages in length. Lucero also attached 245 tabbed
exhibits to the brief. On December 18, 2007, the district
court entered an order sua sponte striking Lucero’s re-
sponse brief and ordering her to file an amended response
brief not to exceed 50 pages in length. On March 10, 2008,
Lucero filed her amended response brief. On July 3, 2008,
the district court granted summary judgment in favor of
defendants on all of Lucero’s claims. Lucero appealed the
district court’s ruling with respect to her claims for retalia-
tion, discrimination, hostile work environment, and breach
of contract, and she appealed the district court’s decision
to strike her initial response brief.
12 No. 08-2943
II. Analysis
We review a district court’s ruling on summary judgment
de novo, construing facts and drawing inferences in the
light most favorable to the non-moving party. Cooper-Schut
v. Visteon Automotive Sys., 361 F.3d 421, 425 (7th Cir. 2004).
Summary judgment is proper when there is no genuine
issue of material fact and the moving party is entitled to
judgment as a matter of law. Fed. R. Civ. P. 56(c).
A. Retaliation Claims
Lucero appeals on her retaliation claims. In her retalia-
tion claims, Lucero claims defendants violated Title VII of
the Civil Rights Act of 1964 (42 U.S.C. § 2000e-3(a)) and
Title IX of the Education Amendments of 1972 (20 U.S.C.
§ 1681(a)) by retaliating against her for complaining about
alleged discrimination. To prevail on her retaliation claims,
Lucero must establish that she suffered a materially
adverse employment action. Burlington Northern and Santa
Fe Ry. Co. v. White, 548 U.S. 53 (2006). The district court
found that Lucero had not submitted sufficient evidence to
create a genuine issue of material fact as to whether her
reassignment to teach English primarily to 7th grade
students, instead of 12th grade students, was a materially
adverse employment action. As a result, it granted sum-
mary judgment in favor of defendants on these claims. The
parties focus their retaliation-related arguments on this
dispositive question.
We examine this question in light of the Supreme Court’s
decision in Burlington. In that case, Burlington had hired
No. 08-2943 13
Sheila White as a railroad “track laborer,” a job that
entailed removing and replacing track components,
transporting track material, cutting brush, and clearing
litter and cargo spillage from the right-of-way. Some facets
of that job involved operation of a forklift. White was soon
assigned to operate the forklift, and while she also per-
formed some of the other track laborer chores, operation of
the forklift became her primary responsibility. After she
complained to Burlington officials about sexual harassment
by her male supervisor, however, White was relieved of
forklift duty and assigned to perform only other track
laborer tasks. Id. at 57-58. She sued, asserting a claim of
retaliation, and a jury found in her favor, concluding that
her reassignment was a materially adverse employment
action. The district court denied a posttrial motion by
Burlington for judgment dismissing White’s claim as a
matter of law. White v. Burlington Northern and Santa Fe Ry.
Co., No. 99-2733 M1/BRE, 2000 WL 35448693 (W.D. Tenn.
Nov 16, 2000). The Sixth Circuit initially reversed the
judgment, but the full appeals court vacated the panel
decision, heard the matter en banc, and affirmed the
district court’s judgment in White’s favor. White v.
Burlington Northern & Santa Fe R. Co., 364 F.3d 789, 803 (6th
Cir. 2004).
The Supreme Court heard the case to clear up a circuit
split as to the standard for when a reassignment of duties
is a materially adverse action. The Court cautioned that
“reassignment of job duties is not automatically action-
able,” and that the standard for assessing such a reassign-
ment is an objective, rather than a subjective, one. Id. at 71.
The Court stated that “materially adverse” in this context
14 No. 08-2943
means “it well might have dissuaded a reasonable worker
from making or supporting a charge of discrimination.” Id.
at 68 (quoting Rochon v. Gonzales, 438 F.3d 1211, 1219 (D.C.
Cir. 2006)). “[P]etty slights, minor annoyances, and simple
lack of good manners” are normally not sufficient to deter
a reasonable person. Id. The Court further stated that
whether an action is materially adverse “often depends on
a constellation of surrounding circumstances, expectations,
and relationships which are not fully captured by a simple
recitation of the words used or the physical acts per-
formed.” Id. at 69 (quoting Oncale v. Sundowner Offshore
Servs., Inc., 523 U.S. 75, 81-82 (1998)).
Applying the law to the case in front of it, the Court
rejected Burlington’s contention that the reassignment of
White could not be considered materially adverse because
her “former and present duties f[e]ll within the same job
description.” Id. at 70. The Court concluded: “[H]ere, the
jury had before it considerable evidence that the track labor
duties were ‘by all accounts more arduous and dirtier’; that
the ‘forklift operator position required more qualifications,
which is an indication of prestige’; and that ‘the forklift
operator position was objectively considered a better job
and the male employees resented White for occupying it.’
Based on this record, a jury could reasonably conclude that
the reassignment of responsibilities would have been
materially adverse to a reasonable employee.” Id. at 71
(quoting Burlington, 364 F.3d at 803) (internal citations
omitted).
Turning to our case, Lucero argues on appeal that her
2004-05 job reassignment was an adverse action because
No. 08-2943 15
her teaching reassignment would dissuade reasonable
teachers from making or supporting a charge of discrimi-
nation (and, she argues, her reassignment actually did
dissuade other teachers from bringing discrimination
charges) and teaching English 7 is less prestigious than
teaching Seniors. To support her argument that her teach-
ing reassignment has dissuaded teachers from making a
charge of discrimination, Lucero submitted affidavits from
colleagues that state that Lucero’s reassignment has
dissuaded other discrimination charges. However, the
same individuals that filed the affidavits have been
involved in making and supporting discrimination charges
on Lucero’s behalf since the reassignment, demonstrating
that they were not in fact dissuaded. More to the point,
unlike the employee in Burlington, Lucero was not reas-
signed to a position consisting of objectively less desirable
duties. She continued to teach the same academic subject
in the same building and under the same conditions after
her reassignment. In fact, her reassigned duties were the
same teaching duties she successfully performed for all but
one year of teaching for the School Corporation. She did
not suffer a cut in pay, benefits, or privileges of employ-
ment when she was assigned to teach English 7 for the
2004-05 school year.
Lucero’s effort to create an issue of fact as to an adverse
employment action by asserting that her 2004-05 teaching
assignment was less prestigious than her previous assign-
ment fails. The Supreme Court in Burlington did reference
“prestige” once, when it stated the “forklift operator
position required more qualifications, which is an indica-
tion of prestige.” Here, there’s no evidence that a 12th
16 No. 08-2943
grade English teacher has more qualifications than a 7th
grade teacher. While Lucero may subjectively believe that
teaching High School students is more prestigious than
teaching Junior High students, her personal preference is
not sufficient to establish an adverse action. As defendants
point out, if personal preference alone was sufficient to
establish adverse employment action, the objective require-
ment for such a finding would effectively be eliminated
and federal employment law would become a mechanism
for enforcing employee preferences rather than remedying
materially adverse treatment. From an objective stand-
point, Lucero’s reassignment from 12th grade English
teacher to 7th grade English teacher would not dissuade a
reasonable teacher from bringing a discrimination charge
against defendants, as required by Burlington. No reason-
able employee would see her reassignment as materially
adverse. The district court’s grant of summary judgment in
favor of defendants on Lucero’s retaliation claims was
proper.
B. Discrimination Claims
In her discrimination claims, Lucero alleges that defen-
dants discriminated against her on the basis of her sex,
race, color, and natural origin. She brings these claims
under Title VII, Title IX, and 42 U.S.C. § 1981. Similar to her
retaliation claims, to succeed on her discrimination claims
Lucero must demonstrate a materially adverse employ-
ment action that resulted from the alleged discrimination
to survive summary judgment. Lewis v. City of Chicago, 496
F.3d 645, 652-53 (7th Cir. 2007). We have noted that materi-
No. 08-2943 17
ally adverse employment actions that result from discrimi-
nation “can be categorized into three groups of cases
involving: (1) the employee’s current wealth such as
compensation, fringe benefits, and financial terms of
employment including termination; (2) the employee’s
career prospects thus impacting the employee’s future
wealth; and (3) changes to the employee’s work conditions
including subjecting her to ‘humiliating, degrading, unsafe,
unhealthy, or otherwise significant negative alteration in
[her] work place environment.’ ” Id. at 653 (quoting
Herrnreiter v. Chicago Hous. Auth., 315 F.3d 742, 744-45 (7th
Cir. 2002)).
Lucero argues that she suffered a materially adverse
employment action that resulted from the alleged discrimi-
nation. While Lucero’s compensation, benefits, and work-
place environment remain unchanged, she claims that the
reassignment damaged her career prospects because
teaching Seniors and Honors/AP English requires more
training than teaching 7th grade, and because she is now a
“floater teacher” assigned to English 8 and to monitor
study halls in addition to teaching English 7, making her
more susceptible to a reduction in force and less attractive
to other school districts.
Lucero lacks proof for her argument that teaching Senior
English, including Honors/AP English, requires more
specialized training than teaching 7th grade English. In
addition to her own testimony, Lucero attempts to rely
upon the affidavits of her advocates and colleagues.
Although Lucero’s affiants assert that teaching Seniors
requires more specialized training, they lack objective
18 No. 08-2943
evidence to support their opinions. We do not doubt that
a teacher, to succeed in teaching 7th graders, must employ
different skills than she would employ to successfully
teach 12th graders. Each grade level calls for certain
unique, specialized skills in teachers. We cannot conclude
that teaching Seniors requires more specialized training.
Lucero’s attempt to create an adverse employment action
by labeling herself a “floater teacher” also fails. She argues
she is a floater teacher because she has taught 8th grade
English and study hall in addition to 7th grade English
since her reassignment. She continues that this designation
makes her more vulnerable to a reduction in force. How-
ever, Lucero, like the other English teachers in the Junior-
Senior High School English Department, is under contract
simply as a “teacher.” Her teaching contract does not
designate her as a “floater teacher.” Lucero has been
employed under the same terms and conditions, including
the same title, since her employment commenced with the
School Corporation. Moreover, pursuant to the policies of
the School Corporation, reductions in force are determined
on the basis of certification, seniority, proficiency in
teaching performance, and length of experience in assigned
subject area. Lucero’s seniority and teaching certification
are not impacted by her teaching assignment. Lucero has
demonstrated proficiency in teaching Junior High English
courses and has taught these courses for all but one year of
her teaching career in defendants’ employ. It seems
unlikely that her teaching reassignment increased her
chance of being reduced. Nor did the reassignment dimin-
ish her attractiveness to other school districts. Lucero has
not submitted evidence to show a materially adverse
No. 08-2943 19
employment action resulting from the alleged discrimina-
tion, and her discrimination claims do not survive sum-
mary judgment.
C. Hostile Work Environment Claims
Lucero next alleges that the district court erred when it
granted summary judgment on her Title VII and Title IX
hostile work environment claims. She argues that defen-
dants subjected her to a hostile work environment because
they maintained a policy and practice of deliberate indif-
ference to instances of known or suspected sexual and
racial harassment by students, and that this policy and
practice created a climate which facilitated sexual and
racial harassment toward her by the students.
To establish a prima facie case of ethnic origin and/or
sexual hostile environment, Lucero must show that because
of her gender or ethnic origin: (1) she was subjected to
unwelcome harassment; (2) the harassment was based on
her ethnic origin or sex; and (3) the harassment was suffi-
ciently severe or pervasive so as to alter the condition of her
employment and create a hostile or abusive atmosphere.
Kampmier v. Emeritus Corp., 472 F.3d 930, 940 (7th Cir. 2007)
(Title VII case); Mary M. v. North Lawrence Comm. Sch. Corp.,
131 F.3d 1220, 1228 (7th Cir. 1997) (Title IX case). Under
Title IX, there is only a basis for liability when the employer
has been deliberately indifferent to the harassing conduct.
Gebser v. Lago Vista Independent School Dist., 524 U.S. 274,
288-93 (1998). In order for a plaintiff to recover the em-
ployer must act “intentionally . . . by remaining deliberately
indifferent to acts . . . of which it had actual knowledge.”
20 No. 08-2943
Davis v. Monroe County Bd. of Educ., 526 U.S. 629, 642 (1999).
Under Title VII, an employer can avoid liability for hostile
environment sexual harassment if it promptly investigates
a complaint when made and then, if warranted, “takes steps
reasonably likely to stop the harassment.” Saxton v. AT&T,
10 F.3d 526, 536 (7th Cir. 1993).
Lucero asserts administrators created a hostile work
environment by “ridiculing” her May 2004 complaints
related to the Fisher-Brockman and Playboy incidents and
by being too lenient in their responses to these complaints.
There is no doubt that the students involved in the Fisher-
Brockman and Playboy incidents conducted themselves in
an extremely inappropriate manner. No teacher should be
subject to the deplorable behavior described in the facts of
this case. Still, these were isolated incidents that were
neither sufficiently severe or pervasive to rise to the level
of actionable harassing conduct. Ngeunjuntr v. Metro. Life
Ins. Co., 146 F.3d 464, 467 (7th Cir. 1998) (“Relatively
isolated instances of nonsevere misconduct will not
support a claim of a hostile environment”). In addition,
there is no evidence to suggest that the students targeted
Lucero because of her gender or national origin.
Furthermore, there does not seem to be a basis for em-
ployer liability with respect to these incidents because
Bunger and Childs investigated Lucero’s referrals and
disciplined the students involved in the incidents. The
students involved in the Playboy and Fisher-Brockman
incidents were suspended from school, and Fisher was
counseled by Bunger for his separate conduct in the com-
puter lab. Although Lucero may disagree with the disci-
No. 08-2943 21
pline imposed, her disagreement is subjective and does not
establish unreasonableness or deliberate indifference.
Lucero alleges that the students’ “Dirty Mexican” and “Is
this how they do it in Mexico?” remarks also created a
hostile work environment. With respect to the comments
made by the students, Lucero testified that she did not
refer those students for discipline for uttering those
comments and “handled the situation in the classroom”
pursuant to the School Corporation’s discipline policy.
There is no evidence that such comments were uttered
more than once. These comments were not sufficiently
pervasive so as to alter the conditions of Lucero’s working
environment.
Lucero also points to Childs’ “criticism” of Lucero’s ten
minute in-class response to a student’s question in which
she discussed the time she and her husband were stopped
by a policeman, which she attributed to the fact that they
looked “Mexican.” The evidence reflects that Childs’
criticism of her racial profiling story was not racially
oriented. Childs merely critiqued her teaching style in an
interviewing skills exercise.
We conclude that Lucero’s allegations of hostile work
environment fail as a matter of law. Under both Title VII
and Title IX, she cannot establish a prima facie case of
harassment.
D. Contract Claims
Lucero contends the defendants breached the collective
bargaining agreement by violating certain policies promul-
22 No. 08-2943
gated by the board of trustees. First, she alleges that
defendants breached the collective bargaining agreement
because Childs failed to mention problems when he
conducted Lucero’s annual teacher evaluation and failed to
give her an opportunity to correct any problems by placing
her on a job improvement plan after the evaluation. The
teacher evaluation policy provides that a teacher with two
or more years of experience shall be evaluated at least once
during the school year. Childs did evaluate Lucero once
during the 2003-04 year. The problems which precipitated
her eventual transfer, and of which she now complains she
did not have an opportunity to “correct,” did not arise
until the Spring, after her evaluation was completed. These
problems could not have been part of the evaluation, and
there is no requirement that a teacher be evaluated twice in
a year. Further, the job improvement target provision is
only triggered “[i]f the evaluator determines that the
teacher’s performance is below the corporation’s standard
of acceptable performance.” Because Lucero’s problems
did not come to a head until after her evaluation, defen-
dants did not violate these policies.
Lucero also argues that defendants violated their “public
complaint policy” because some of the parent and student
complaints were not initially referred to her to resolve.
However, this policy is a personnel policy and not part of
the collective bargaining agreement or Lucero’s teacher
contract and an alleged violation of it cannot be pursued as
a breach of contract. See Orr v. Westminister Village North,
Inc., 689 N.E.2d 712, 720-21 (Ind. 1997).
Next, Lucero claims defendants breached their
“anti-harassment policy.” The anti-harassment policy
No. 08-2943 23
provides that “[i]t is the policy of the [board] to maintain
an education and work environment which is free from all
forms of unlawful harassment, including sexual harass-
ment.” The board is directed to “vigorously enforce” the
policy by investigating allegations of harassment “and in
those cases where unlawful harassment is substantiated,
the Board will take immediate steps to end the harass-
ment.” Here, the evidence reflects that Bunger and Childs
did investigate Lucero’s disciplinary referrals and suspend
the students involved in misconduct. Therefore, this claim
lacks merit.
Lucero claims that defendants violated the “reassign-
ment policy” because there was no evidence that she was
not qualified to teach Senior English, and she was more
qualified to teach English 12 and Honors/AP English than
was her replacement, Chester. The policy dealing with
reassignment reads: “Reassignment and/or transfer of an
employee shall be made on the basis of qualifications.
Employees who have requested transfer shall be notified in
writing of the administrative action taken.” This language
seems to grant the administration discretion to reassign
teachers based upon qualifications. In this case, a vacancy
was listed for a teacher for the English Department for
grades 7 through 12. Childs interviewed Chester and
determined he was better suited to teach Senior English,
and that Lucero was better suited to teach English 7. This
decision seems reasonable. Lucero has not demonstrated a
genuine dispute of material fact as to any of her breach of
contract claims.
24 No. 08-2943
III. Conclusion
Based on the evidence in the record, summary judgment
in favor of defendants was proper on Lucero’s retaliation,
discrimination, hostile work environment, and breach of
contract claims. Moreover, the district court did not abuse
its discretion in striking Lucero’s first brief in response to
defendants’ motion for summary judgment. We AFFIRM the
decision of the district court.
5-29-09