NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued August 8, 2012
Decided August 21, 2012
Before
WILLIAM J. BAUER, Circuit Judge
DIANE P. WOOD, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 11‐3198
NATALIE NASH, Appeal from the United States District
Plaintiff‐Appellant, Court for the Northern District of Illinois,
Eastern Division.
v.
No. 09 C 7558
BOARD OF EDUCATION OF DOLTON
WEST SCHOOL DISTRICT 148 and Ronald A. Guzmán,
JAYNE PURCELL, Judge.
Defendants‐Appellees.
O R D E R
Natalie Nash, an African‐American, appeals the grant of summary judgment against
her in her suit under 42 U.S.C. § 1981 alleging that a school board and its superintendent
racially discriminated and retaliated against her by “terminating” her contract. Nash has
not provided evidence from which a rational trier of fact could conclude that the decision
was unlawfully motivated. Accordingly, we affirm the judgment.
No. 11‐3198 Page 2
Because we are reviewing a grant of summary judgment, we present the facts and
their reasonable inferences in Nash’s favor. See Smith v. Bray, 681 F.3d 888, 892 (7th Cir.
2012). For the school years spanning 2004–2008, Nash performed community and media
relations work for the Dolton West School District 148 under four one‐year contracts.
Saundra Mickles, the assistant superintendent, negotiated and signed the contracts. She also
signed another one‐year contract in the summer of 2008 for the upcoming school year, the
contract at issue in this case.
At the end of that summer, defendant Jayne Purcell, who is white, replaced an
African‐American as superintendent, and the board began enforcing a policy that required
administrators to obtain board approval for any contract over $10,000. Upon learning about
Nash’s new contract, the board’s business manager directed Mickles to present the contract,
which was for $30,000, to the board for approval. Mickles submitted the contract at the
board’s September meeting.
At that meeting the board’s president, who is black, complained about Nash’s
performance. She said that Nash focused on highlighting bad publicity about the district
(including stories about the superintendent’s recent untimely retirement) rather than good
publicity (like a recent renovation project). The president also wanted the contract to require
Nash to take direction from the superintendent.
Purcell met with Nash in October to discuss Nash’s contract duties. According to
Nash, at the meeting Purcell said the contract was a “done deal” and asked Nash to start
planning an event for “parent night,” which she did four days after the meeting. Shortly
after the meeting, Purcell wrote a memo to the board regarding the meeting, which she
described as “very productive.” But Purcell also reported that Nash was refusing to work
until she was paid her salary for August and September, a matter for which she threatened
to retain legal counsel. Purcell recommended paying Nash for August and September and
renewing her current contract.
The board did not approve the contract. It discussed Purcell’s memo at an October
meeting and decided that any further arrangements with Nash were “not going to be . . .
successful.” The board wrote Nash’s attorney to explain its decision, stating that Mickles
had merely offered Nash a proposed contract that required board approval, and the board
did not approve the contract. It also criticized Nash for being unwilling to continue
“negotiations” unless she got paid for the two months before the board voted.
Nash sued Purcell and the school board under 42 U.S.C. § 1981, claiming that they
discriminated against her when they “did not honor” her contract and replaced her with a
No. 11‐3198 Page 3
white person. She also claimed they retaliated against her for “opposing the Board’s
discriminatory refusal to honor her contract.” She added state‐law claims for breach of
contract and tortious interference with contract.
The defendants moved for summary judgment, which Nash opposed. For her
discrimination claim, she argued that Purcell, whose arrival coincided with the board’s new
policy requiring that it approve contracts, was racially biased against her. Nash cited an
affidavit from Maureen White‐Rush, who is her sister and was an assistant to Purcell before
Purcell was the superintendent. According to White‐Rush, Purcell made three racially
tinged comments during the time they worked together: (1) she called White‐Rush a “black
working dog”; (2) she told White‐Rush that before Purcell’s promotion to Interim
Superintendent, “it used to be the four black ladies against the white lady,” but after the
promotion “the tables have turned”; and (3) she said to White‐Rush that Mickles (who is
black) was a “worthless piece of crap” who “just need[ed] to go away” for making a speech
on racial issues. Nash also submitted an affidavit from Mickles stating that she submitted
two contracts from white vendors to the board that did not require their approval. On the
retaliation claim, Nash primarily relied on affidavits from White‐Rush and Mickles in which
they say they were demoted after complaining about racial issues.
The district court granted the motion, concluding that Nash failed to make out either
a direct or indirect case of discrimination. Under the direct case, the court dismissed White‐
Rush’s affidavit as hearsay. It then concluded that the board’s new policy requiring that it
approve contracts, although coinciding with Purcell’s arrival as superintendent, is not by
itself evidence of discrimination. Under the indirect method of proof, the court concluded
that Nash presented no evidence that a similarly situated person of another race had been
treated more favorably. Finally, regarding the retaliation claims, the court reasoned that
although others may have accused Purcell of discrimination and were then demoted, no
evidence suggests that Nash herself opposed discrimination before her contract was denied.
On appeal Nash argues that the district court erred in concluding that the jury could
not reasonably find that the board “terminated her contract” because of her race. Invoking
both the direct and indirect methods of proof, she focuses on four parts of the record:
(1) White‐Rush’s affidavit chronicling Purcell’s past racial comments; (2) Mickles’s affidavit
stating that she submitted two contracts from white vendors but was not required to obtain
the board’s approval; (3) the “suspicious timing” of Purcell’s promotion to Superintendent
around the same time that the board began enforcing the policy of requiring approval of
contracts over $10,000; and (4) the board’s “inconsistent reasons” for not contracting with
her (first, it criticized her performance, then later it attacked her unwillingness to negotiate),
which she says are “pretexts” for discrimination.
No. 11‐3198 Page 4
This evidence does not permit a reasonable inference that the board declined to
renew Nash’s contract because of her race. We analyze claims under 42 U.S.C. § 1981 with
the same substantive standards and methods of proof as those that apply to claims brought
under Title VII. See Smith, 681 F.3d at 896. Under the direct method of proof, the plaintiff’s
evidence “must point directly to a discriminatory reason for the employer’s action and be
directly related to the employment decision.” Dass v. Chi. Bd. of Educ., 675 F.3d 1060, 1071
(7th Cir. 2012) (internal quotations and citations omitted). Nash argues that she has direct
evidence—Purcell’s racial comments—which she argues are not hearsay.
Nash is correct that the district court mistakenly disregarded the comments as
hearsay. The court apparently assumed that Nash offered to testify about what White‐Rush
said Purcell had said. In fact, Nash offered an affidavit from White‐Rush herself. A party
may rely on an affidavit at summary judgment if it is “made on personal knowledge, set[s]
out facts that would be admissible in evidence, and show[s] that the affiant or declarant is
competent to testify on the matters stated.” FED. R. CIV. P. 56(c)(4); see Luster v. Ill. Dep’t of
Corr., 652 F.3d 726, 731 & n.2 (7th Cir. 2011). White‐Rush heard Purcell make the comments,
and Purcell’s comments are not hearsay because they were not offered for their truth, but
rather to show that Purcell made them. See FED. R. EVID. 801(c); United States v. White, 639
F.3d 331, 337–38 (7th Cir. 2011).
Nonetheless, Purcell’s comments are not evidence of racial hostility toward Nash
because they were not about Nash, they were not made near the time of any adverse
employment actions against Nash, and did not reference any adverse employment actions.
See Overly v. Keybank Nat’l Ass’n, 662 F.3d 856, 865 (7th Cir. 2011); Nichols v. S. Ill. Univ.‐
Edwardsville, 510 F.3d 772, 781–82 (7th Cir. 2007); Merillat v. Metal Spinners, Inc., 470 F.3d 685,
694 (7th Cir. 2006). In fact, the only evidence in the record about Purcell’s attitude toward
Nash shows that Purcell supported Nash. The letter she wrote to the board shows that she
wanted to pay Nash for the first two months of the contract and retain her; it was the board
that chose to end the relationship, yet nothing in the record suggests that the board harbors
any racial bias.
The other circumstantial evidence that Nash relies on for her direct case is equally
unavailing. White‐Rush testified that she submitted contracts for over $10,000 from two
white vendors and was not asked to submit them to the board for approval. But she also
explained in her deposition testimony that those two contracts were “done” before the
September meeting, when the policy was first enforced. Nash then revives her accusation
that Purcell’s arrival suspiciously coincided with the board’s newly enforced policy
requiring that it approve contracts over $10,000. But even if it is reasonable to infer that
No. 11‐3198 Page 5
Purcell wanted the policy enforced, nothing suggests that she wanted it enforced because
she was racially hostile to Nash.
Nash does not address her discrimination claim under the indirect method of proof
until her reply brief, where she attempts to identify a similarly situated white person who
was treated more favorably than her. She points to Mickles’s deposition testimony that after
the board ended the relationship with Nash, the board hired a white woman to do
“basically the same thing” as Nash had been doing. But to make out a prima facie case
under the indirect method, Nash must put forward evidence that she was meeting the
legitimate expectations of her employer. Smith v. Sebelius, 2012 U.S. App. LEXIS 12428, at *10
(7th Cir. June 19, 2012); Smith v. Lafayette Bank & Trust Co., 674 F.3d 655, 657 (7th Cir. 2012).
Not only has she failed to offer such evidence, the record is to the contrary: The board was
not happy with Nash’s performance because she focused on negative stories. Nash replies
that the board later accused her of also being unwilling to negotiate. That accusation, Nash
insists, is inconsistent with performance problems, and therefore shows that both reasons
are pretexts. But both reasons are compatible grounds for believing that she was not
meeting the board’s legitimate expectations and for ending her contract. The first reason
referred to her past work and the second related to her current behavior. Without a prima
facie case, Nash’s indirect case collapses.
Nash also argues that the district court erred in granting summary judgment on her
retaliation claim, but she is wrong. Section 1981 authorizes claims for retaliation, but only if
the defendant took adverse action against another for asserting a right protected by § 1981.
CBOCS West, Inc. v. Humphries, 553 U.S. 442, 445 (2008); see Bray, 681 F.3d at 896. Nash does
not even assert, let alone have evidence tending to prove, that the board took action against
her because she asserted her or anyone else’s right to be free of discrimination in making
contracts. And in fact, Nash testified that she did not complain about discrimination until
after the board had already decided to not honor the contract, the only adverse employment
action she says she faced. So the decision not to renew her contract could not have been
retaliatory. See Bray, 681 F.3d at 896; Rogers v. City of Chicago, 320 F.3d 748, 753 (7th Cir.
2003).
AFFIRMED.
