Koszola, Kathleen v. Bd Educ City Chicago

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-2428
KATHLEEN KOSZOLA,
Plaintiff-Appellant,
v.
BOARD OF EDUCATION OF THE CITY OF CHICAGO,
Defendant-Appellee.
____________
Appeal from the United States District Court for
the Northern District of Illinois, Eastern Division.
No. 01 C 2722—Marvin E. Aspen, Judge.
____________
ARGUED DECEMBER 2, 2003—DECIDED OCTOBER 8, 2004
____________
Before RIPPLE, MANION, and WOOD, Circuit Judges.
WOOD, Circuit Judge. Kathleen Koszola sued the Board
of Education of the City of Chicago under Title VII of the
Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq., for refus-
ing to hire her for a full-time teaching position because she
is white. The Board moved for summary judgment at the
close of discovery. Citing the dearth of facts in Koszola’s
submissions pursuant to Northern District of Illinois Local
Rule 56.1, the district court granted the Board’s motion. We
affirm, as Koszola has provided no evidence showing that
she may have suffered discrimination.
2 No. 03-2428
I
Koszola’s rocky tenure with the Board began in 1994. While
pursuing her bachelor’s degree in teaching at Northeastern
Illinois University, Koszola spent a semester as a student
teacher at the Dirksen Elementary School, a Chicago public
school. After she graduated in 1995, Koszola served as a
substitute teacher for the Board at a number of public
schools on the North Side of Chicago, located in Regions 1,
2, and 3 of the Chicago Public Schools (CPS) system. Koszola
never served as a substitute teacher in any school located
on Chicago’s South Side, which is divided into Regions 4, 5,
and 6. Between 1995 and 1997, Koszola applied for a
number of full-time teaching positions with the CPS, but
she limited her search to schools on the City’s North and
Northwest Sides. The Board never hired her for any of these
positions.
In 1997, while she was serving as a substitute teacher at
the Howe School, located on the City’s West Side in Region
2, Koszola’s car was vandalized. After that negative ex-
perience, she refused all assignments at Howe, despite the
Board’s policy requiring substitute teachers to accept all as-
signments. The Board’s manager of substitute teacher as-
signments, Ursula Anderson, repeatedly attempted to
contact Koszola after this incident, but she did not respond.
Anderson then demoted Koszola. On April 28, 1997, Koszola
sent a resignation letter to the Board, stating: “I refuse to
work on the West or South Side. I want to work on the
Northwest Side, but the Board of Education says I am the
wrong color. I don’t need this aggravation. I give up teaching.
You win. Go hire all the blacks and foreigners to balance the
employment. I am not going to endanger my life anymore.”
From August 1999 through June 2002, Koszola again applied
unsuccessfully for CPS teaching positions in schools on the
North and Northwest Sides.
Since 1980, the Board’s faculty hiring and assignment
process for the CPS has been governed by a federal consent
decree arising from a lawsuit brought by the Department of
No. 03-2428 3
Justice alleging that the Board maintained a racially
segregated school system in violation of the Equal Protection
Clause. The decree provides for “the establishment of the
greatest practicable number of stably desegregated schools,
considering all the circumstances in Chicago,” and, to that
end, calls for integration of both the student bodies and
faculty of the CPS. With respect to faculty assignments, the
decree requires that “[t]he Board will promptly implement
a plan to assure that the assignment of full-time classroom
teachers to schools will be made in such a manner that no
school is identified as intended for students of a particular
race.” The decree dictates that “with respect to the full-time
classroom teachers in each school faculty, the racial/ethnic
composition and the proportion of experienced teachers will
be plus and minus fifteen percent of the systemwide
proportions of such teachers with respect to such character-
istics, and the range of educational training will be substan-
tially the same as exists in the system as a whole.”
On April 17, 2001, Koszola filed a complaint against the
Board in federal district court alleging racial discrimination
in violation of Title VII of the Civil Rights Act of 1964, 42
U.S.C. §§ 2000e, et seq., and the Equal Protection Clause.
Specifically, she alleged that her applications for full-time
employment with the CPS had “continually been rejected or
not considered by Defendant because she is Caucasian.”
After discovery closed, the Board successfully moved for
summary judgment. This appeal followed.
II
Title VII of the Civil Rights Act of 1964 provides that it
“shall be an unlawful employment practice for an em-
ployer . . . to fail or refuse to hire or to discharge any
individual, or otherwise to discriminate against any
individual with respect to his compensation, terms, condi-
tions, or privileges of employment, because of such individ-
4 No. 03-2428
ual’s race . . . .” 42 U.S.C. § 2000e-2(a)(1). To prevail on her
race discrimination claim, Koszola must either show direct
evidence of discriminatory motive or intent or rely on the
indirect burden-shifting method outlined in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973). The district
court found that Koszola could not prevail under either
approach. We review a district court’s decision to grant
summary judgment de novo. McDonald v. Vill. of Winnetka,
371 F.3d 992, 1001 (7th Cir. 2004). In doing so, we construe
all facts and draw all reasonable inferences from those facts
in favor of the non-moving party. Id.In reviewing Koszola’s Title VII claim, the district court
considered only those facts included in the parties’ Local
Rule 56.1 statements of material fact, a decision that
Koszola challenges on appeal. Under the Local Rules of the
Northern District of Illinois, a party filing a motion for sum-
mary judgment under FED. R. CIV. P. 56 must serve and file
“a statement of material facts as to which the moving party
contends there is no genuine issue and that entitle the
moving party to a judgment as a matter of law.” N.D. Ill.
Local R. 56.1(a)(3). Further, Local Rule 56.1(b)(3)(A)
requires that the non-moving party file a reply, including “a
response to each numbered paragraph in the moving party’s
statement, including, in the case of any disagreement, specific
references to the affidavits, parts of the record, and other
supporting materials relied upon.” The reply must also
include “any additional facts that require the denial of sum-
mary judgment,” with appropriate references to the record.
Id. at 56.1(b)(3)(B). Finally, Local Rule 56.1(b)(3)(B) pro-
vides that “[a]ll material facts set forth in the statement
required of the moving party will be deemed to be admitted
unless controverted by the statement of the opposing party.”
This court reviews the decision of a district court concerning
compliance with local rules, such as Rule 56.1, only for an
abuse of discretion. Ammons v. Aramark Uniform Servs., Inc.,
368 F.3d 809, 817 (7th Cir. 2004).
No. 03-2428 5
To establish the set of facts that were properly before the
district court, a brief review of the procedural history of the
case is in order. On July 11, 2002, the Board filed its Local
Rule 56.1(a) Statement of Facts, listing 54 paragraphs of
allegedly undisputed facts. Among these was Paragraph 29,
which stated: “Koszola does not know the name, qualifi-
cations, date of assignment, or otherwise have any personal
knowledge regarding any persons who were assigned to full-
time positions which she sought with the Chicago Public
Schools.” On September 20, 2002, Koszola filed her Local
Rule 56.1(b) response, in which she admitted that she “[did]
not dispute these facts” in paragraphs 1-54 of the Board’s
filing. She then provided additional statements of fact,
including Paragraph 57, which stated: “With respect to
Defendant’s 29, Plaintiff identifies the persons who were
hired in her place at Oriole Park by a black female from
Texas, Hitch by a black female from Georgia, Canty by an
Hispanic male teacher, Sayre Academy by a black female by
the name of Ms. Smith.” At the Board’s motion, the court
struck a number of paragraphs from Koszola’s response and
accompanying affidavit, including Paragraph 57 on the
ground that it “inherently contradicts facts in the Board’s
statement” that Koszola had admitted. In particular, her
identification in Paragraph 57 of specific schools that had
allegedly hired nonwhite teachers and the races of those
hired contradicted her admission of the Board’s Paragraph
29. The court then granted Koszola five days to resubmit
her Local Rule 56.1(b) statement and supporting affidavit.
On November 20, 2002, Koszola submitted a revised Local
Rule 56.1(b) statement and affidavit, which omitted the
paragraphs stricken by the district court. Inexplicably,
Koszola again admitted all the factual statements in the
Board’s original Local Rule 56.1(a) statement, including
Paragraph 29. In addition, she replaced the text of Paragraph
57 in her response with the following: “In the fall of 1996 at
a public school Plaintiff was substituting regularily (sic) the
6 No. 03-2428
principal apologized to plaintiff for never interviewing
plaintiff. She explained that she was forced to hire a mi-
nority and she told Plaintiff that Plaintiff was eight times
better than the candidate she had. The principle (sic) nodded
to a young black female, identifying her as the one she
hired for the position.” Koszola also attached an affidavit
recounting several instances in which principals at certain
Chicago public schools indicated that they would consider
only minority candidates, but she did not include this
information in her Rule 56.1(b) response.
In granting the Board’s motion for summary judgment,
the court explained that it had considered only the facts in
the parties’ Local Rule 56.1 Statements of Material Facts,
as it was entitled to do. See Bordelon v. Chi. Sch. Reform
Bd. of Trs., 233 F.3d 524, 529 (7th Cir. 2000). Therefore,
Koszola’s only evidence of discrimination that the court
considered was Paragraph 57 of her November response,
which recounted an unidentified principal’s comment that
she was “force[d] to hire a minority.” On appeal, Koszola ar-
gues that the court should also have considered Paragraph 57
of her September response, which listed specific schools that
had hired nonwhite teachers and the races of these hires.
We find no error in the court’s exclusion of this latter
paragraph because, as the district court indicated, it
“inherently contradict[ed] facts in the Board’s statement,”
the entirety of which Koszola had admitted. See Andrews v.
Branch 11 Nat’l Ass’n of Letter Carriers Union, No.
01 C 3434, 2002 WL 483408, at *2 (N.D. Ill. Mar. 29, 2002)
(“[T]he Court will disregard Plaintiffs’ additional facts to
the extent they contradict a fact Plaintiffs also admit.”); cf.
United States v. Kasuboski, 834 F.2d 1345, 1350 (7th Cir.
1987) (“Affidavits and depositions entered in opposition to
summary judgment that attempt to establish issues of fact
cannot refute default admissions.”).
Likewise, the district court did not abuse its discretion in
limiting its review to the content of the parties’ Local Rule
56.1 statements, excluding from consideration Koszola’s
No. 03-2428 7
attached affidavits. “[W]e have emphasized the importance
of local rules and have consistently and repeatedly upheld
a district court’s discretion to require strict compliance with
its local rules governing summary judgment.” Metro. Life
Ins. Co. v. Johnson, 297 F.3d 558, 562 (7th Cir. 2002) (internal
quotation marks omitted); see also Ammons, 368 F.3d at 817(same); Waldridge v. Am. Hoechst Corp., 24 F.3d 918, 922
(7th Cir. 1994) (collecting cases). This means that a district
court is entitled “to decide the motion based on the factual
record outlined in the [Local Rule 56.1] statements.”
Markham v. White, 172 F.3d 486, 490 (7th Cir. 1999); see
Midwest Imports, Ltd. v. Coval, 71 F.3d 1311, 1316 (7th Cir.
1995) (finding the court did not abuse its discretion in
declining to consider a non-movant’s affidavits because “it
is a reasonable judgment on the part of the district court
that strict, consistent, ‘bright-line’ enforcement is essential
to obtaining compliance with [Local Rule 56.1] and to
ensuring that long-run aggregate benefits in efficiency
inure to district courts”). As the district court did not abuse
its discretion in limiting its review of Koszola’s Local Rule
56.1 statements and her supplemental materials, our de
novo review of its grant of summary judgment will likewise
rest only on the Board’s Local Rule 56.1(a) statement and
Koszola’s November Local Rule 56.1(b) response.
On this record, Koszola has failed to carry her burden with
respect to her Title VII claim. Under the direct method of
proving discrimination, Koszola had to show either through
direct or circumstantial evidence that the Board’s decision
to not to hire her was motivated by an impermissible pur-
pose, such as her race. See Adams v. Wal-Mart Stores, Inc.,
324 F.3d 935, 938-39 (7th Cir. 2003). “Direct evidence
essentially requires an admission by the decision-maker
that his actions were based on the prohibited animus.”
Radue v. Kimberly-Clark Corp., 219 F.3d 612, 616 (7th Cir.
2000). “A plaintiff can also prevail under the direct method
of proof by constructing a ‘convincing mosaic’ of circumstan-
8 No. 03-2428
tial evidence that allows a jury to infer intentional discrimi-
nation by the decisionmaker. That circumstantial evidence,
however, must point directly to a discriminatory reason for
the employer’s action.” Rhodes v. Ill. Dep’t of Transp., 359
F.3d 498, 504 (7th Cir. 2004) (internal citation and quota-
tion marks omitted).
As we are limited to the contents of Koszola’s November
Local Rule 56.1(b) response, the only evidence related to
discrimination that we may consider is the statement in her
revised Paragraph 57 quoted above, about the “forced”
hiring of a minority candidate. The district court refused to
consider this statement on the ground that it “lacks proper
evidentiary foundation.” The basis for this conclusion is not
entirely clear, as we would expect this statement to be
admissible under FED. R. EVID. 801(d)(2)(D) as the admis-
sion of a party-opponent, that is, “a statement by the party’s
agent or servant concerning a matter within the scope of
the agency or employment, made during the existence of the
relationship.” Yet even if Paragraph 57 is properly before
us, it is not sufficient to permit Koszola to recover under the
direct method. Koszola filed her Local Rule 56.1 statement
after the close of discovery, yet the only evidence of discrim-
ination included in her statement consisted of this assertion
that an unidentified principal at a unidentified Chicago
public school told her that she was “eight times better” than
an unidentified African-American hire. There is no evidence
in the record showing that Koszola ever attempted to depose
this principal, to identify the teacher hired, or to establish
the teacher’s qualifications. Furthermore, this statement is
inconsistent with Koszola’s admission that she “does not
know the name, qualifications, date of assignment, or
otherwise have any personal knowledge regarding any
persons who were assigned to full-time positions which she
sought with the Chicago Public Schools.”
For this same reason, Koszola cannot prevail under the
indirect burden-shifting method outlined in McDonnell
No. 03-2428 9
Douglas. Under this approach, a plaintiff must present evi-
dence tending to show: (1) she was a member of a protected
class; (2) she applied for, and was qualified for, an open
position; (3) the employer rejected her for the position; and
(4) the employer filled the position with an individual out-
side of the plaintiff’s protected class, or the position remained
vacant. Bennett v. Roberts, 295 F.3d 687, 694 (7th Cir. 2002).
At that point, the defendant has a chance to articulate a
legitimate, nondiscriminatory reason for its action; if it does
so, the plaintiff must offer evidence showing that the
defendant’s reason is pretextual. Id. at 694-95. As the Board
has conceded that Koszola has satisfied the first three
elements of McDonnell Douglas, we need only consider the
last part. In Greer v. Bd. of Educ. of the City of Chi., 267
F.3d 723 (7th Cir. 2001), we indicated that the showing re-
quired under the fourth element of McDonnell Douglas must
take the federal consent decree into account, and that a
plaintiff would have “to show, at minimum, that the Board
allowed teachers of another race to work at schools even if
their presence would have contributed to a racial imbalance
among that school’s faculty.” Id. at 728.
We need not decide here exactly how the consent decree
might affect Koszola’s case, because she presented no evi-
dence that might have shown a violation of the decree’s
guidelines. In her Local Rule 56.1(b) statement, Koszola ad-
mitted that she can identify only five schools by name “at
which she was told that an African-American or Hispanic
teacher was hired for a full-time position at or near the
times she sought a full-time position at the individual school.”
She further admitted that five of these schools were not
within the +/- 15% compliance guidelines during the rele-
vant time period, with nonwhite faculty underrepresented
at all five schools. In addition, she admitted that she “does
not know the name of any of the five minority teachers that
she was told were hired [at these schools], nor does she
know anything about their teaching skills and qualifica-
10 No. 03-2428
tions.” Koszola also identified a sixth school at which an
Asian-American was allegedly hired for a position in which
Koszola had expressed interest, but she produced no evidence
showing that this hire contributed to a racial imbalance in
the school’s faculty. Moreover, in her Local Rule 56.1(b)
response, she admitted that the principal at the school “did
not hire Koszola for a full-time position because, based on
her performance as a student teacher, he perceived that she
lacked the skills necessary to be an effective teacher . . . [and
had] deficient classroom management and lesson-planning
skills.” In the absence of evidence that “the Board allowed
teachers of another race to work at schools even if their
presence would have contributed to a racial imbalance
among that school’s faculty,” Koszola could not make out a
prima facie case under McDonnell Douglas assuming that
the consent decree informs the inquiry. See Greer, 267 F.3d
at 728.
Treating this as a straightforward Title VII case, Koszola
also loses. She has not identified a nonwhite comparator
who was hired by the schools to which she applied and who
is similarly situated to her in all material respects. With
respect to the five nonwhite hires, Koszola has conceded
that she does not “know anything about their teaching skills
and qualifications.” Likewise, Koszola has admitted that she
does not “know the name, qualifications, date of assignment,
or otherwise have any personal knowledge regarding any
persons who were assigned to full-time positions which she
sought with the Chicago Public Schools.” There is no evi-
dence in the record showing that Koszola attempted to
obtain this information from the Board or other sources. As
we have often stated, summary judgment “is the ‘put up or
shut up’ moment in a lawsuit, when a party must show
what evidence it has that would convince a trier of fact to
accept its version of events.” Johnson v. Cambridge Indus.,
Inc., 325 F.3d 892, 901 (7th Cir. 2003) (quoting Schacht v.
Wis. Dep’t of Corr., 175 F.3d 497, 504 (7th Cir. 1999)).
No. 03-2428 11
Koszola’s evidence falls woefully short. She has failed to pro-
vide the court with any information regarding the individuals
allegedly hired in her stead, other than their race, and she
has made several damaging admissions confirming that she
lacks such information. Koszola has thus failed to establish a
genuine issue of material fact on the question whether the
Board discriminated against her.
III
For these reasons, we AFFIRM the judgment of the district
court.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—10-8-04