Taysheedra Allen-Noll v. Madison Area Technical College ( 2020 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 19-2639
TAYSHEEDRA D. ALLEN-NOLL,
Plaintiff-Appellant,
v.
MADISON AREA TECHNICAL COLLEGE, et al.,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Western District of Wisconsin.
No. 3:18-cv-00216-slc — Stephen L. Crocker, Magistrate Judge.
____________________
ARGUED MAY 19, 2020 — DECIDED AUGUST 5, 2020
____________________
Before EASTERBROOK, BRENNAN, and ST. EVE, Circuit Judges.
BRENNAN, Circuit Judge. When her teaching contract with
Madison Area Technical College was not renewed,
Taysheedra Allen-Noll sued her former employer alleging ra-
cial discrimination and harassment. After discovery the col-
lege moved for summary judgment, but Allen-Noll failed to
follow the district court’s procedures. The record was largely
established by the defendants’ submissions, and the college
prevailed.
2 No. 19-2639
Allen-Noll appeals, challenging the grant of summary
judgment and arguing the district court abused its discretion
by accepting the college’s findings of fact and denying her
motion to compel further discovery. We affirm the district
court’s rulings. This appeal is also frivolous, so we grant the
college’s request to sanction Allen-Noll and her lawyer.
I
As this case comes to us, for reasons discussed later, the
factual background described below is based largely on the
defendants’ evidentiary submissions. See, e.g., McCurry v.
Kenco Logistics Servs., LLC, 942 F.3d 783, 788 (7th Cir. 2019).
In January 2009 Allen-Noll, who is African-American, was
hired by Madison Area Technical College1 as a part-time nurs-
ing instructor to teach pharmacology and clinical courses.
Later that year the college hired her full time and in 2010 she
was promoted to the position of “Instructor—Practical Nurs-
ing.”
Beginning in 2010, Allen-Noll was criticized for her teach-
ing methods. Some students complained to the administra-
tion that she was “rude, condescending, and defensive” in
class. In 2011 complaints about Allen-Noll resurfaced from
students and the tutor assigned to her class. The students
complained about Allen-Noll’s teaching, assignments, and
testing methods. The tutor criticized Allen-Noll for not timely
posting grades and making study guides available as well as
for failing too many students. Allen-Noll’s clinical class also
1 When appropriate we refer to individual defendants; otherwise we use
the collective “college.”
No. 19-2639 3
complained that she failed to follow the rules on cell phone
use and did not complete paperwork. To address these issues
Allen-Noll was assigned a faculty mentor.
The college has informal and formal processes for employ-
ees to complain about discrimination and harassment. Allen-
Noll used both. That spring she filed an informal complaint
alleging discrimination and harassment as to her clinical
teaching assignment, claiming faculty members had teamed
up against her to garner student complaints, she was treated
differently because of her skin color, and her class load was
too high. Mark Lausch was the dean of the college’s center for
health and safety education and Allen-Noll’s immediate su-
pervisor. He met with Allen-Noll and others to discuss her
complaint. At Allen-Noll’s request Lausch assigned her a new
faculty mentor. He also offered to be more involved in depart-
ment meetings to ensure they were carried out in a civil
manner, and he directed that Allen-Noll be assigned a reason-
able case load. Lausch emailed Allen-Noll’s new mentor that
“her issue is that the [] staff simply do not like her. I cannot
tell if it is race-related or simply personality conflicts.”
Complaints about Allen-Noll’s teaching continued in fall
2011. Other faculty said she would not participate in nursing
team meetings or volunteer for the extra service expected of
full-time faculty. But not all reviews of Allen-Noll’s teaching
were negative. That fall Lausch observed her teach pharma-
cology and he wrote that she “did a great job of connecting
the points in this lecture with previous lectures and
handouts.” In this review Lausch did not identify any areas
for Allen-Noll to improve her teaching.
In spring 2012 students again complained about Allen-
Noll saying she failed to teach necessary skills and played
4 No. 19-2639
favorites among students. Twice that semester Lausch told Al-
len-Noll about these complaints, but she denied them and ac-
cused others of “hostile, over scrutinizing and undermining
behavior.” Lausch explained to her that the comments he re-
ceived from students were unacceptable and that he did not
understand why so many students made these remarks if they
were incorrect.
Mounting concerns about Allen-Noll’s teaching led
Lausch to contact the college’s human resources department.
He was advised to document any issues she had, identify
clearly for her any deficiencies, and offer her assistance. The
defendants addressed their concerns about Allen-Noll’s
teaching in two ways. Lausch told her that her performance
needed to improve or she could face discipline and her con-
tract may not be renewed. And in May 2012, the college
placed her on a performance improvement plan used to iden-
tify problematic areas, measure the outcomes sought, and list
the assistance the college offered. Allen-Noll’s plan covered
four categories: classroom instruction, clinical teaching, peer
relations, and general expectations.
Allen-Noll emailed Lausch with questions about this plan.
He responded that his positive in-class observation of her did
not reflect the college’s overall assessment of her perfor-
mance, and that the pattern of student complaints about her
teaching was worrisome. Allen-Noll responded with a
163-page rebuttal in which she did not take responsibility for
the deficiencies listed in the plan, she shifted blame to others,
and she pointed to others’ alleged performance problems.
Allen-Noll’s performance did not improve that fall, so in
December 2012 Lausch placed her on a second plan contain-
ing the same four categories of deficiencies and added a fifth
No. 19-2639 5
that listed student complaints since the last plan. Those com-
plaints included that during class she just read off her Power-
Point presentations, and that she became defensive when
asked why she stopped giving out study guides.
In spring 2013 Lausch observed Allen-Noll teach her phar-
macology class and he complimented her. But that fall one
student withdrew from the nursing program, describing Al-
len-Noll’s course as a toxic environment that did not allow
him to learn. Students continued to complain about her, on
topics ranging from inappropriate class discussion to posting
grades late.
The release of grades became an issue when Allen-Noll ad-
ministered a test four days before a course withdrawal dead-
line. Because most of her students were failing the course, Al-
len-Noll was asked to post the test grades before that dead-
line. She said she could not guarantee she would do so.
Lausch directed her to release the grades before the students
had to decide whether to withdraw. Allen-Noll complied, but
she considered the request and accompanying correspond-
ence harassing and discriminatory. At Allen-Noll’s request,
she, Lausch, the faculty union president, and a human re-
sources representative met to discuss her concerns. Allen-Noll
was told that because she was on a performance improvement
plan, she was subject to more supervision than other faculty.
Allen-Noll was placed on a third plan in December 2013.
That listed deficiencies needing improvement—instruction,
peer relations, and general expectations. It also described the
assistance the college could give Allen-Noll, including twice
monthly meetings with her faculty mentor. As that mentor
described those meetings, Allen-Noll was arrogant and bellig-
erent, gave one-word answers to questions, and claimed not
6 No. 19-2639
to understand why they were meeting. She eventually can-
celled the remaining scheduled meetings.
Allen-Noll filed a formal discrimination complaint with
the college in January 2014. She alleged that because of her
race, Lausch singled her out for questioning about the student
who left the nursing program, directed her but not other in-
structors to post grades by a specific date and time, and
removed her from a clinical teaching site. Allen-Noll also al-
leged that because of her race another faculty member com-
mented negatively and falsely to Allen-Noll’s supervisor. In
the formal complaint Allen-Noll made many of the same alle-
gations raised in her informal complaint.
Because Allen-Noll had not remedied the deficiencies
listed in her three plans, in March 2014 Lausch recommended
that her contract not be renewed. When the college’s board of
trustees gave Allen-Noll notice why her contract was not be-
ing renewed, she requested a private conference with the
board. Lausch presented the board with a nearly 80-page re-
port chronicling Allen-Noll’s performance issues and describ-
ing the college’s efforts to improve Allen-Noll’s performance.
The board voted 6-2 not to renew her teaching contract. Allen-
Noll later testified at her deposition that she was not aware of
any board member having any racial bias against her.
Allen-Noll pursued administrative remedies before the
Wisconsin Equal Rights Division, then she filed this suit
against the college, Lausch, and other individual defendants.
She claimed that because of her race she was discriminated
against and harassed, subjected to different terms and condi-
tions of employment, and terminated because she complained
about her treatment. The defendants moved to dismiss her
complaint, which the district court granted in part, allowing
No. 19-2639 7
select claims to proceed: a Title VII claim against the college
and its board; a racial discrimination claim against the college,
its board, and Lausch under 42 U.S.C. § 1981; an equal protec-
tion claim against Lausch; and a due process claim against
Lausch and the board’s chair.
After discovery, and on the same day, each side filed mo-
tions. Allen-Noll moved to compel Lausch for a second depo-
sition and for the college to produce further documents. The
district court denied Allen-Noll’s discovery motion (as well as
a motion to reconsider) concluding that she had not shown
shortcomings in the defendants’ discovery production. For
having to respond to the motion to compel, Allen-Noll and
her counsel were ordered to pay the college’s attorneys’ fees
and costs of over $14,000 under Federal Rule of Civil Proce-
dure 37(a).
The college moved for summary judgment. The district
court’s summary judgment procedures—incorporated in its
preliminary pretrial conference order which the parties re-
ceived at the beginning of the litigation—require a party op-
posing summary judgment to “[a]nswer each numbered fact
proposed by the moving party in separate paragraphs, using
the same number.” To dispute a proposed fact, the non-mo-
vant must “state [its] version of the fact and refer to evidence
that supports that version.” The non-movant can also offer its
own proposed findings of fact, citing to admissible evidence
in the record, if necessary to defeat summary judgment. “Un-
less the responding party puts into dispute a fact proposed by
the moving party, the court will conclude that the fact is un-
disputed.” In its procedures the court warns the parties that it
“will not search the record for evidence” and it “will not
8 No. 19-2639
consider any factual propositions … that are not supported
properly and sufficiently by admissible evidence.”
Allen-Noll responded to the college’s summary judgment
motion, but barely. Her brief contained a single page of legal
argument. While she filed her own declaration, rather than
respond to each proposed finding of fact as the district court’s
summary judgment procedures required, she submitted a
photocopy of those proposed findings with question marks,
underlining, and some illegible handwritten notes in the mar-
gins. Three days later her counsel filed a declaration submit-
ting record excerpts in support of her opposition brief.
The district court granted the college summary judgment
on Allen-Noll’s remaining claims, ruling that she had failed
to “provide a coherent or meaningful response to any of the
defendants’ proposed findings of fact.” She also “did not file
any proposed findings of fact of her own citing to her own
affidavit or any other admissible evidence.” Given plaintiff’s
failures, the district court “accepted most of defendants’ pro-
posed facts as undisputed.” After reviewing those facts, the
court reasoned that “[a]part from conclusory allegations and
her own speculation about defendants’ motives, Allen-Noll
has not adduced any admissible evidence that her perfor-
mance was called into question and that she was eventually
terminated either because of her race or because [of] her com-
plaints of racial harassment and discrimination.”
Allen-Noll appeals the district court’s application of its
summary judgment procedures, its grant of summary judg-
ment to the college, as well as the denial of her motion to com-
pel.
No. 19-2639 9
II
The district court accepted the college’s proposed findings
of fact on summary judgment as largely undisputed. This fol-
lowed from that court requiring compliance with its local
summary judgment procedures, and its conclusion that Al-
len-Noll provided no coherent or meaningful response to the
defendants’ proposed findings of fact. Allen-Noll disagrees
with that conclusion, asserting she disputed many of defend-
ants’ proposed facts and opposed them with admissible evi-
dence.
This court has repeatedly recognized that district courts
may require exact compliance with their local rules.
Hinterberger v. City of Indianapolis, 2020 WL 3980690, *3 (7th
Cir. July 15, 2020) (and citations therein). This includes local
rules governing summary judgment. Schmidt v. Eagle Waste &
Recycling, Inc., 599 F.3d 626, 630 (7th Cir. 2010); Hedrich v. Bd.
of Regents of Univ. of Wis. Sys., 274 F.3d 1174, 1178 (7th Cir.
2001). We review for abuse of discretion the district court’s
decision to enforce its local rules, McCurry, 942 F.3d at 787 n.2
(citing Ammons v. Aramark Uniform Servs., Inc., 368 F.3d 809,
817 (7th Cir. 2004)), and we give a district court’s interpreta-
tion of its rules considerable weight. Hinterberger, 2020 WL
3980690, *3.
While Allen-Noll filed a brief in response to defendants’
motion for summary judgment, her opposition to the defend-
ants’ proposed findings of fact—her counsel sometimes refers
to it as “disputes”—did not comply with the district court’s
summary judgment procedures. Those rules are succinct (five
pages long), crystal clear (even giving examples), and not on-
erous. They direct the opposing party to respond to each of
the movant’s factual paragraphs. Allen-Noll’s attorney
10 No. 19-2639
responded by submitting a photocopy of the college’s re-
sponse. It was silent on a vast majority of the defendants’ pro-
posed findings of fact. Those it did reference it did so inscru-
tably, with question marks, underlining, and illegible com-
ments in the margins handwritten by Allen-Noll’s counsel.
The defendants proposed 261 findings of fact. At oral ar-
gument before this court, Allen-Noll’s counsel said 89 of those
are disputed. But it is impossible to tell from Allen-Noll’s sub-
mission the proposed findings with which she disagrees. The
district court could not figure it out, and the court’s proce-
dures expressly state it “will not search the record for
evidence.” Yet that is what plaintiff asks. Illegible notes, hand-
written in the margins, do not comply with the district court’s
summary judgment procedures. We conclude that the district
court did not abuse its discretion when it ruled that Allen-
Noll failed to deny or meaningfully dispute the defendants
proposed findings of fact.
Next is Allen-Noll’s challenge to the district court’s grant
of summary judgment, which we review de novo. McCurry,
942 F.3d at 788. While her claims are imprecise, it is fair to
conclude they allege racial discrimination by disparate treat-
ment, retaliation, and potentially by a hostile work environ-
ment in violation of Title VII, § 1981, and the Equal Protection
Clause of the Fourteenth Amendment.
Summary judgment for the college should be reversed, Al-
len-Noll submits, because her declaration and exhibits intro-
duced through her counsel’s affidavit create genuine disputes
of material fact. But Allen-Noll filed her declaration late, and
it contradicts her previous sworn testimony, so the sham affi-
davit rule applies. See Cook v. O’Neill, 803 F.3d 296, 298 (7th
Cir. 2015). The declaration also repeats conclusory allegations
No. 19-2639 11
from the complaint, disconnected from the evidence, which
does not defeat summary judgment. Warsco v. Preferred Tech-
nical Group, 258 F.3d 557, 563 (7th Cir. 2001). And submitting
exhibits through affidavit of counsel would have required the
district court to search the record and identify disputes for Al-
len-Noll, a task not required by summary judgment proce-
dures.
The primary adverse employment action Allen-Noll
claims she suffered was the college’s decision not to renew her
contract. She has offered no evidence this was because of her
race, or in retaliation for her internal discrimination com-
plaint. Her allegations of racial discrimination and retaliatory
termination are unsupported by any facts. In her briefs Allen-
Noll paints a vivid picture of a “conspiracy” among the
faculty at the college to remove her, claiming there was an
“antebellum” climate where a racist “cabal” of “elite Cauca-
sians” were attempting to rid the campus of Black people. But
other than Allen-Noll’s own conclusory assertions, there is no
evidence in the record to support her statements.
The record contained only one reference to a comment
about race, in an email Lausch sent to Allen-Noll’s new fac-
ulty mentor in spring 2011. After Allen-Noll had first told
Lausch that she believed her colleagues were racially discrim-
inating against her, Lausch mentioned to Allen-Noll’s new
mentor that the faculty did not seem to like her, and that he
was not sure whether it was related to race. Aside from this
instance, which is insufficient to establish an element of any
of her claims, the record does not contain any other race-re-
lated comments by anyone at the college.
Instead, the evidence shows that for approximately three
years the college fielded complaints about Allen-Noll, and
12 No. 19-2639
then placed her on plans to identify deficiencies for her and
attempt to improve her teaching performance. Eventually,
when these efforts failed to succeed due to Allen-Noll’s refus-
als to comply, her supervisor recommended that her contract
not be renewed based on her failure to meet reasonable job
expectations. The record shows that the college had legitimate
performance-based reasons not to renew Allen-Noll’s con-
tract. The record is barren of evidence that race played any
role in the college’s decision not to renew her contract.
Other requirements for Allen-Noll to advance her claims
also were not met. She failed to identify a valid comparator
who was treated more favorably than her. Williams v. Office of
Chief Judge of Cook County, Ill., 839 F.3d 617, 626 (7th Cir. 2016).
She also did not show that legitimate, non-discriminatory rea-
sons for not renewing her contract were pretextual. Andy
Mohr Truck Center, Inc. v. Volvo Trucks North America, 869 F.3d
598, 606 (7th Cir. 2017). Allen-Noll simply failed to produce
evidence to establish the elements of her Title VII, § 1981, or
equal protection claims.
Her due process claim against Lausch and the chair of the
college’s board fails as well. She did not have a viable prop-
erty interest in continued employment at the college, as she
was not tenured; indeed, the college has no tenure track. The
undisputed facts show that by the series of performance im-
provement plans, Lausch’s continuing efforts at identifying
Allen-Noll’s deficiencies, and the college’s repeated offering
of resources and services, she was afforded two full years to
improve her teaching, but she did not. She even admitted the
college’s board was not racially biased. For all these reasons
we conclude the court properly granted summary judgment
to the college.
No. 19-2639 13
Allen-Noll also appeals the district court’s denial of her
motion to compel, in which she asked that Lausch be ordered
to sit for a second deposition, and for the production of per-
sonnel files of various college employees and a security report
on a classroom disturbance. We review these discovery rul-
ings for abuse of discretion. Wanko v. Bd. of Trs. of Ind. Univ.,
927 F.3d 966, 969 (7th Cir. 2019).
The district court demonstrated its patience in a thorough
22-page written opinion and order denying Allen-Noll’s mo-
tion to compel. On appeal she does not attempt to show how
that court abused its discretion; she just asks this court for a
different outcome. In the administrative proceeding before
this lawsuit, Allen-Noll’s former attorney questioned Lausch
for more than five hours, covering 145 pages of transcript. Al-
len-Noll’s motion could not identify for the district court a
line of questioning not addressed in that first deposition. The
district court closely reviewed that transcript and concluded
that Lausch’s first deposition addressed the facts on which Al-
len-Noll based her federal claims. As for the documents she
requested but did not receive, she addresses those only in
passing with an undeveloped argument. Given the district
court’s efforts and detailed reasoning, it did not abuse its dis-
cretion in denying Allen-Noll’s motion to compel.
III
Finally, we move to the question of sanctions. Allen-Noll’s
appeal has presented problems from the start. Getting her
brief filed in this court was a challenge, as four iterations were
stricken as procedurally deficient. Eventually, Allen-Noll
filed a brief that the clerk accepted, although it contained no
statement of facts, see FED. R. APP. P. 28(a)(6), and a 30-page
14 No. 19-2639
summary of the argument that was hardly “succinct” and
“clear” as required. FED. R. APP. P. 28(a)(7).
After merits briefing was complete but before oral argu-
ment, and by separate motion, the college sought sanctions
against Allen-Noll and her counsel under Federal Rule of Ap-
pellate Procedure 38. The college argues Allen-Noll’s appeal
is frivolous and that an award of sanctions is warranted. Al-
len-Noll has responded—with some incendiary rhetoric—
that the defendants are the parties who should be sanctioned.
Under Rule 38, the court may impose sanctions if an ap-
peal is frivolous. That standard is met when “the appellant’s
claims are cursory, totally undeveloped, or reassert a previ-
ously rejected version of the facts.” McCurry, 942 F.3d at 791
(citing Jaworski v. Master Hand Contractors, Inc., 882 F.3d 686,
691 (7th Cir. 2018)). An appeal can also be frivolous if it “re-
hashes positions that the district court properly rejected” or
“when it presents arguments that are lacking in substance and
‘foreordained’ to lose. Berwick Grain Co. v. Ill. Dep’t of Agric.,
217 F.3d 502, 505 (7th Cir. 2000) (citations omitted).
Allen-Noll’s appeal satisfies these criteria. She objects to
summary judgment but never explains why she did not pro-
duce admissible evidence. Instead, she spends much of her
appellate brief describing facts the district court did not even
consider. She fails to engage with the district court’s explana-
tion for how it employed its summary judgment procedures,
and she never analyzes the district court’s decision to deem
the college’s facts undisputed. Her appeal of the denial of her
motion to compel repeats a position the district court rejected
twice, and she offers nothing more. As this court stated in
Jaworski, “[t]he purpose of an appeal is to evaluate the reason-
ing and result reached by the district court.” 882 F.3d at 690.
No. 19-2639 15
Allen-Noll’s appeal fails under that description, as her “argu-
ments, once deciphered, are nothing more than naked asser-
tions.” Id. at 689.
Sanctions are also warranted here because of the amount
of extra work defendants had to perform to defend against
Allen-Noll’s meritless arguments. See Ruderer v. Fines, 614
F.2d 1128, 1132-33 (7th Cir. 1980) (sanctioning appellant for
burdening defendants, district court, and court of appeals).
For example, the final version of Allen-Noll’s brief references
“disputes” and included excerpts of an unfiled document in
her appendix in violation of Federal Rules of Appellate Pro-
cedure 10(a)(1) and 30(a)(1). Sorting through these items cre-
ated unnecessary work for opposing counsel and this court.
This court recently imposed Rule 38 sanctions in an anal-
ogous case, McCurry, 942 F.3d 783 (7th Cir. 2019). In McCurry
this court also considered a racial discrimination allegation
that resulted in the district court granting summary judgment
to the defendant. Plaintiff appealed, filing a “bizarre appellate
brief laden with assertions that have no basis in the record and
arguments that have no basis in the law.” Id. at 791. Our court
found that the plaintiff’s attorney had advanced “baseless as-
sertions,” id. at 792, found the appeal frivolous, id. at 687, and
we ordered sanctions. Id. at 792–93.
Similar conduct occurred here. Allen-Noll’s brief includes
“shockingly irresponsible” and “baseless assertions” about
the college crafting a racist conspiracy and cultivating an “an-
tebellum” climate on its campus. See id. Even Allen-Noll’s
sanctions response brief—which fails to even mention Rule
38—engages in inappropriate mudslinging. She claims the
college “dance[s] to the antebellum music of a kangaroo court
band playing to the script of off tune frivolity—deserving of
16 No. 19-2639
the boos of sanctions.” This opinion will not be burdened with
further examples, but it is worthy of mention that the district
court warned Allen-Noll and her counsel in its ruling on her
motion to compel about the use of unnecessary invective.
After wading through the heated rhetoric in Allen-Noll’s sub-
missions, the district court cautioned that “the only side toss-
ing around accusations and invectives is plaintiff’s.” Unfortu-
nately, Allen-Noll and her counsel did not heed this warning
in the district court’s ruling (after which substantial attorneys’
fees and costs were assessed against Allen-Noll for her motion
to compel).2
The defendants were put to the burden and expense of
sorting through and defending against Allen-Noll’s patently
frivolous appeal, which also needlessly consumed judicial re-
sources. Sanctions are therefore warranted. Pursuant to Rule
38, we order Allen-Noll and her counsel to pay the defendants
their reasonable attorneys’ fees incurred in the defense of this
appeal, plus double costs. The defendants shall submit a state-
ment of their fees and costs within two weeks of the date of
this decision, and Allen-Noll shall have two weeks to respond
to the defendants’ submission.
2 Allen-Noll’s attorney before the district court and this court is Rocky L.
Coe. He has been previously warned about incendiary rhetoric. In a disci-
plinary proceeding against him which was dismissed, the Wisconsin Su-
preme Court publicly admonished him for “unwarranted and unprofes-
sional” and “disrespectful comments.” In re: Disciplinary Proceedings
against Rocky L. Coe, 2003 WI 117, ¶ 41 (2003). That court “strongly advised
[him] to curtail his rhetorical style in future court proceedings or risk sanc-
tions” in light of Wisconsin Supreme Court Rule 62.02(1), which provides
that Wisconsin lawyers shall at all times abstain from making disparaging
or demeaning remarks or comments and abstain from any conduct that
may be characterized as uncivil, abrasive, abusive, hostile, or obstructive.
No. 19-2639 17
  
For the reasons discussed above, we AFFIRM the district
court’s rulings, and we GRANT Defendants-Appellees’ motion
for sanctions.