IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF ILLINOIS

WESTERN DIVISION

Anna Johnson, )

) Case No. 12 C 50098

Plaintiff, )

)

 vs. )

)

Rockford Public School District #205, )

) Judge Philip G. Reinhard

Defendant. )

)

ORDER

For the reasons stated below, defendant’s motion for summary judgment on the retaliation

claim is denied as to the claims plaintiff was not hired for the Summer 2010 position and the

2010-11 school year positions in retaliation for her complaint about being sexually harassed by

Rundall. Defendant’s motion for summary judgment is granted as to all plaintiff’s other claims

of retaliation. Defendant’s motion for summary judgment on the sexual harassment claim is

denied. This case might be a good one for Magistrate Judge Mahoney to mediate given the

evidence each party has shown to this point. 

STATEMENT-OPINION

Plaintiff, Anna Johnson, brings this action against defendant, Board of Education of

Rockford Public Schools District No. 205, her former employer, alleging sexual harassment and

retaliation both in violation of Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e-2

(a)(1) et seq.) Defendant moves for summary judgment.

Plaintiff was a non-tenured teacher for defendant from August 25, 2005, until the end of

the 2009-10 school year on June 4, 2010. Plaintiff was assigned to work in a self-contained,

learning-impaired, mentally impaired (“LIMI”) classroom at Jefferson High School. Along with

all defendant’s non-tenured teachers, she received notice in spring 2009 that she would be

dismissed at the end of the 2008-09 school year. When she became eligible to re-apply, she did

so and was hired into the LIMI position for the 2009-10 school year.

Sometime during summer 2009, plaintiff began a consensual romantic relationship with

Don Rundall, the Jefferson High School principal. This relationship lasted until January 2010

when plaintiff ended it. Rundall continued to contact plaintiff in an attempt to re-engage in a

sexual relationship. Rundall told plaintiff that if she had sex with him she would maintain her

employment at Jefferson High School for the next school year (2010-11). Plaintiff submitted to

Rundall’s advances and had sex with him on more than one occasion.

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In March 2010, defendant again decided to dismiss all non-tenured teachers at the end of

the 2009-10 school year and notified the non-tenured teachers of this fact. Plaintiff received the

notice on March 24, 2010. This notice of dismissal was unrelated to her relationship with

Rundall.

Sometime prior to February 2010, defendant’s superintendent received an anonymous

complaint concerning the consensual romantic relationship between plaintiff and Rundall. In

February 2010, during the course of the investigation undertaken as a result of this complaint,

plaintiff attended a meeting with defendant’s superintendent and Shantina Davenport (Davenport

during the relevant time period had her job title change but her duties remained the same. She

was at one time the special assistant to the chief financial officer and later the executive director

of HR.) During this meeting, plaintiff said she had been involved in a consensual relationship

with Rundall. During this meeting, she did not allege she had been or was being sexually

harassed by Rundall. In an affidavit, filed with her response to defendant’s summary judgment

motion, plaintiff says she complained to Davenport in February 2010 about Rundall’s

unwelcome sexual advances. In her LR56.1 statement of facts, plaintiff says after speaking with 1

Davenport, Davenport offered to move plaintiff to a new school. However, the citation to

plaintiff’s deposition offered to support this fact does not do so. Davenport did testify in her

deposition that plaintiff requested in a meeting with Davenport and plaintiff’s union

representative that she be transferred to a different school. Davenport testified she did not

believe plaintiff told her in this meeting that she was having continuing problems with Rundall. 

Defendant at it’s board meeting on March 9, 2010, authorized a notice of remedy to be

served on Rundall. The notice listed grounds for his dismissal as an administrator if not

remedied and directed him to take or refrain from various listed actions. Engaging in 

“inappropriate personal and/or sexual relationships with at least one female subordinate

employee” was cited as one of the grounds. 

On May 17, 2010, two paraprofessionals working in plaintiff’s classroom each filed

separate complaints against plaintiff alleging plaintiff was leaving her classroom of mentally

impaired students, making phone calls and texting during class time and inappropriately

discussing her personal life with parents of students in her class. Due to these allegations,

plaintiff was placed on leave effective May 18, 2010. During the investigation of these

complaints, student journals that were sent back and forth between plaintiff and the parents of her

students were reviewed. Plaintiff’s notes in these journals to the parents contained personal

information about plaintiff and derogatory statements and criticisms of defendant’s personnel. 

Plaintiff acknowledged this information and the criticisms were inappropriate.

As part of the investigation, an administrative assistant at Jefferson High School

submitted a written statement documenting inappropriate verbal threats made by plaintiff towards

another teacher. Plaintiff received a letter dated June 16, 2010 (signed by Shantina Davenport)

 Defendant argues that self-serving assertions in affidavits cannot be used to defeat 1

summary judgment but this is not true. Unsubstantiated self-serving affidavits may be used to

defeat summary judgment so long as the assertions do not contradict the affiant’s prior sworn

statements. U.S. v. Funds in the Amount of One Hundred Thousand One Hundred and Twenty

Dollars, 730 F.3d 711, 718 (7 Cir. 2013). th

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from defendant at the conclusion of the investigation which recited a number of findings

concerning plaintiff’s actions and concluded her conduct was unbecoming of a teacher and

“through your defamatory and disparaging remarks to the parents, you have caused harm to the

district and to your coworkers. Because you have conducted yourself in such an unprofessional

manner and in the event you attempt to seek re-employment in this district, this letter is being

placed in your personnel file.”

All non-tenured teachers dismissed at the end of the 2009-10 school year who wished to

be re-employed were required to reapply. In 2010, it was the practice of defendant’s department

of special education to post vacant special education teaching positions for the following school

year internally at each school. It was also the practice at that time that currently employed

teachers requesting internal transfer would be placed based on seniority. Paul Bushard, a

tenured, certified special education teacher with an endorsement in learning disabilities, applied

for internal transfer to the Jefferson High School LIMI vacancy, the position previously held by

plaintiff before her dismissal (along with all of the other non-tenured teachers) at the end of the

2009-10 school year. Plaintiff maintains she applied for this position but neither she, nor

defendant, have any record that she did so and, because Bushard was placed in the position

through the internal transfer process, the position was never available to non-currently employed

individuals such as plaintiff or any of the other dismissed non-tenured teachers.

Plaintiff applied for a summer 2010 teaching job at defendant’s Page Park School. The

Page Park principal, Debbie Johnson, called and asked plaintiff if she wanted the job. Plaintiff

accepted. Shortly thereafter, Debbie Johnson called plaintiff and told her she could not hire

plaintiff for the position because of plaintiff’s relationship with Rundall. Plaintiff testified in her

deposition that Debbie Johnson told plaintiff that Shantina Davenport told Debbie Johnson not to

hire plaintiff because of plaintiff’s relationship with Rundall. Debbie Johnson denies making

this statement.

Plaintiff claims she applied for additional teaching positions with defendant (apart from

the Jefferson High School LIMI position discussed above) for the 2010-11 school year but was

not interviewed or hired for any of them. Building administrators in the buildings where plaintiff

applied for teaching positions for the 2010-11 school year were responsible for choosing

candidates to interview and for making recommendations for hire to defendant. Defendant used

these recommendations to select the best qualified applicants for the positions in accordance with

the collective bargaining agreement between defendant and the teachers’ union. All of those

building administrators submitted affidavits stating they did not base their decisions on who to

interview or who to recommend for hire on any input from or relating to Rundall. Plaintiff does

not present any conflicting evidence as to these building administrators and the 2010-11 school

year. She testified in her deposition that she believes, based on Debbie Johnson telling her that

Shantina Davenport told Debbie Johnson she could not hire plaintiff for the 2010 summer

position, that the other principals had been informed not to hire her due to her relationship with

Rundall.

“A Title VII plaintiff can prove retaliation under either the direct or indirect method.”

Majors v. General Elec. Co., 714 F.3d 527, 537 (7 Cir. 2013). Plaintiff only argues the direct th

method. “The direct method requires proof that (1) the employee engaged in statutorily protected

activity; (2) she suffered an adverse employment action; and (3) a causal link exists between the

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two.” Id. Retaliation under the direct method may be proven by evidence of retaliation without

resort to inference such as a direct admission that the protected activity (here the complaint to

Davenport) motivated the adverse employment action or by circumstantial evidence including

suspicious timing, evidence that similarly situated employees were treated differently, or

evidence that the employer’s stated reason for the adverse employment action was pretextual.”

Naficy v. Ill. Dept. of Rev., 697 F.3d 504, 512-13 (7 Cir.2012). “[T]he question is simply th

whether the plaintiff has ‘one way or the other’ presented sufficient evidence that she is protected

by the statute, suffered an adverse employment action, and sufficient evidence exists that a

rational jury might conclude the employer acted on account of the plaintiff’s protected class as

opposed to some other benign reason.” Id. at 514. 

Plaintiff admits, in her responses to defendant’s LR56.1 statement of facts, that her

termination at the end of the 2009-10 school year was unrelated to Rundall. She was terminated

along with all of defendant’s other non-tenured teachers. She also admits that the Jefferson LIMI

classroom position (her assignment during the 2009-10 school year), was not available to her or

any other non-tenured teacher for the 2010-11 school year because a tenured teacher, Bushard,

obtained that position via internal transfer based on seniority before it could become available to

non-tenured teachers. 

Plaintiff admits that the complaints by the two paraprofessionals made on May 17, 2010

were not related to her relationship with Rundall. She agrees that the student journals sent back

and forth between plaintiff and her student’s parents reviewed during the investigation of these

complaints contained personal information and derogatory statements and criticisms of

defendant’s personnel. Plaintiff acknowledge that including this information in the student

journals was inappropriate. Plaintiff presents no evidence that her complaints about Rundall or

her relationship with him had anything to do with conclusions reached in this investigation as set

forth in the June 16, 2010 letter signed by Shantina Davenport finding plaintiff’s conduct was

unbecoming of a teacher and stating “through your defamatory and disparaging remarks to the

parents, you have caused harm to the district and to your coworkers.” Plaintiff agrees this letter

was placed in her personnel file. 

The foregoing demonstrates that plaintiff’s termination at the end of the 2009-10 school

year and her not being rehired to the Jefferson LIMI position were by her own admission not

causally linked to her complaint to Davenport. Similarly, she admits the complaints against her

by the paraprofessionals and the investigation of those complaints had nothing to do with her

relationship with Rundall. She presents no evidence that the conclusions reached and action

taken as a result of that investigation (the inclusion of the letter in her personnel file) were

causally linked to her complaint to Davenport. None of these actions supports a retaliation claim.

What plaintiff has left to construct a retaliation claim out of is her testimony that Debbie

Johnson withdrew her offer of employment for Summer 2010 because Shantina Davenport told

Debbie Johnson she could not hire plaintiff due to her relationship with Rundall. From this

statement, plaintiff argues the other principals were told not to hire her due to her relationship

with Rundall and that (rather than those principals concluding that other candidates were better

suited for the positions) is why she was not hired for any other teaching jobs for the 2010-11

school year.

Given all of the other evidence in the record, it seems unlikely plaintiff’s undocumented

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complaint to Davenport of sexual harassment by Rundall was the reason plaintiff did not get the

Summer 2010 teaching position or any teaching position in the 2010-11 school year. Further,

Debbie Johnson’s statement as to what Davenport told her was that Davenport said plaintiff

could not be hired due to her relationship with Rundall not because of her complaint about him

sexually harassing her. However, a statement made by a superior that could be interpreted to be a

reference to an employee having made a complaint of sexual harassment is enough to meet the

causal link component of a retaliation claim for purposes of surviving summary judgment. Egan

v. Freedom Bank, 659 F.3d 639, 643 (7 Cir. 2011) (Bank president’s statement to another th

employee that president had heard plaintiff “had done something she should have been fired for”

was sufficient to survive summary judgment on retaliation claim as president’s statement

plausibly could have been referring to plaintiff’s earlier sexual harassment complaint against a

board member of the bank and plaintiff was subsequently terminated by president.) Here, the

statement of Davenport to Debbie Johnson that plaintiff could not be hired due to her relationship

with Rundall, in light of plaintiff’s affidavit statement that she had complained to Davenport

about being sexually harassed by Rundall, is enough to survive summary judgment on the

retaliation claim as to the rescission of the offer for the Summer 2010 position. Drawing all

inferences favorably to the plaintiff, it can be inferred for purposes of surviving summary

judgment that Davenport’s statement to Debbie Johnson that plaintiff could not be hired due to

her relationship with Rundall was communicated to other principals as well. Plaintiff’s

retaliation claim survives as to the 2010-11 school year as well. 

Plaintiff also claims defendant is liable to her for sexual harassment by Rundall. To

survive a motion for summary judgment on the harassment claim plaintiff must show 1) she was

subjected to unwelcome conduct of a sexual nature; 2) the conduct was severe or pervasive

enough to create a hostile work environment; 3) the conduct was directed at her because of her

sex; and 4) there is a basis for employer liability. Roby v. CWI, Inc., 579 F.3d 779, 784 (7 Cir. th

2009). Since Rundall was plaintiff’s supervisor at Jefferson High School, defendant will be held

strictly liable if there was a tangible employment action such as a discharge, demotion, or change

in working conditions. Id. If there was no tangible employment action, defendant may assert an

affirmative defense that 1) it exercised reasonable care or diligence to prevent and correct any

harassing behavior; and 2) plaintiff unreasonably failed to take advantage of any preventive or

corrective opportunities to avoid harm. Id.

Plaintiff claims that after she attempted to break off their consensual relationship Rundall

pursued her to have sex with him, that his advances were unwelcome, and that he told her she

could keep her job if she had sex with him. He was making these requests daily. She submitted

to these requests on more than one occasion. The first three prongs noted above are met. See 2

Turner v. The Saloon Ltd., 595 F.3d 679 (7 Cir. 2010). th

 Defendant cites plaintiff’s deposition testimony that to the best of her recollection her 2

physical relationship with Rundall ended around January 2010 (Def. Resp. To Pl. Statement of

Facts, ¶ 99) as evidence contradicting plaintiff’s affidavit assertion she submitted to some of

Rundall’s requests for sex after January 2010. However, whether by this testimony she meant

she never had sex with him again or meant that she no longer considered herself to be in a

relationship with him after that point is unclear.

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Plaintiff argues that submitting to sexual advances is itself a tangible employment action

citing Holly D. v. California Inst. of Tech.,, 339 F.3d 1158 (9 Cir. 2003), so that defendant is th

strictly liable for Rundall’s actions. But, this is not so. See Stanfield v. Dart, No. 10 C 6569,

2012 WL 6720433, * 7 (N.D. Ill. Dec. 27, 2012) (Kendall, J.) If this were the case, the

affirmative defense noted above, could never be raised successfully. Id. Plaintiff must show

some other tangible employment action.

As with her retaliation claim, plaintiff’s evidence is her deposition testimony that she was

denied the Summer 2010 position because Davenport had told Debbie Johnson plaintiff could not

be hired due to her relationship with Rundall and the inference that this prohibition on employing

her was communicated to the other principals as well. The court cannot say at this point in the

proceedings that this was not a tangible employment action warranting strict liability. Factual

development will be required for that determination. Summary judgment is not appropriate on

this claim.

For the foregoing reasons, defendant’s motion for summary judgment on the retaliation

claim is denied as to the claims plaintiff was not hired for the Summer 2010 position and the

2010-11 school year positions in retaliation for her complaint about being sexually harassed by

Rundall. Defendant’s motion for summary judgment is granted as to all plaintiff’s other claims

of retaliation. Defendant’s motion for summary judgment on the sexual harassment claim is

denied. This case might be a good one for Magistrate Judge Mahoney to mediate given the

evidence each party has shown to this point. 

Date: 1/16/2014 ENTER:

 

 United States District Court Judge

 Electronic Notices. (LC)

 Copy to Magistrate Judge Mahoney

 

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