In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 04-2501

KATHLEEN LIFTON,

Plaintiff-Appellant,

v.

THE BOARD OF EDUCATION OF THE

CITY OF CHICAGO, ARNE DUNCAN,

and WILLIAM MEUER,

Defendants-Appellees.

____________

Appeal from the United States District Court for

the Northern District of Illinois, Eastern Division.

No. 03 C 0743—Elaine E. Bucklo, Judge.

____________

ARGUED JANUARY 21, 2005—DECIDED JULY 22, 2005

____________

Before RIPPLE, WOOD, and SYKES, Circuit Judges.

SYKES, Circuit Judge. Kathleen Lifton was an awardwinning kindergarten teacher who taught at Norwood Park

Elementary School, a Chicago public school on the city’s

northwest side. In January 2003, however, she resigned,

claiming she had been retaliated against for her opposition

to the early renewal of her school principal’s contract and for

her proposal to change the school’s kindergarten program.

She sued the Chicago Board of Education, its chief execu-
2 No. 04-2501

tive, and the school principal, asserting a violation of her

First Amendment rights, as well as claims for denial of due

process, defamation, and intentional infliction of emotional

distress. The district court granted summary judgment to

the defendants and we affirm.

I. Background

By all accounts Kathleen Lifton had been an exemplary

teacher during her fifteen-year stint as a kindergarten

teacher at Norwood Park. In 2002, however, things

changed. In June of that year, she decided that the kindergarten program at Norwood Park could use some adjustments, and she brought her suggestions to the attention of

the school’s principal, Dr. William Meuer. Lifton proposed

modifying the school schedule so that students would have

staggered dismissal times. She also proposed rearranging

her teaching schedule to focus on academic subjects in the

morning, when she believed students were better able to

concentrate. She wanted to teach from 9 a.m. to 2 p.m.

without a break, working through lunch with half the kindergartners while the other half ate lunch with a teacher’s

aide. The remainder of the kindergartners’ school day would

be staffed by the teacher’s aide and parent volunteers.

Meuer responded that they could discuss her proposal in

the future but that it was too late to change the program for

the upcoming school year with only two months’ notice. 

In addition to her teaching duties, Lifton was a teacher

representative on Norwood Park’s Local School Council

(“LSC”), a group comprised of parents, teachers, administrators, and community members charged with certain planning and oversight responsibilities at the school, in addition

to authority over the spending of certain discretionary

funds. On June 11, 2002, shortly after talking to Meuer

about her proposal for restructuring the kindergarten

program, Lifton sent a flyer home to parents inviting them
No. 04-2501 3

to an upcoming LSC meeting on June 13. The flyer read, in

pertinent part: “It’s not working . . . but we can fix it! Be

part of history in the making. Take a sneak peak [sic] at

next year’s kindergarten program. . . . Regretfully

babysitting will not be provided.” 

This flyer troubled Meuer for two reasons. First, and most

importantly, he had just told Lifton that it was too late to

change the kindergarten program with only two months’

notice, yet she decided to take her plan to parents anyway.

His second objection concerned Lifton’s cancellation of

babysitting service, which was customarily provided for

LSC and PTA meetings at the school. Lifton had told Meuer

in early June that she did not want her classroom used for

babysitting because it had been “trashed” during a recent

PTA meeting; Meuer said he would look into it and offered

to relocate the service. But Lifton had no business

cancelling the babysitting service.

Lifton’s unauthorized flyer about the LSC meeting was

followed by an even more unusual communication she sent

to parents two weeks later. On June 25 Lifton sent a letter

to parents with the following message: “Yesterday, I cried

and slept and slept and cried, unmotivated to complete your

child’s report card as I had planned . . . . You know your

child best. Please complete the final quarter of the report

card. How does it feel to you?” The letter then asked for

parental input on her kindergarten restructuring plan,

again stating, “[l]et’s just call it history in the making.”

Meuer learned about this letter when an angry parent came

to his office demanding an explanation, and other parents

called the school district’s regional office to complain. Meuer

initiated a review of Lifton’s actions, but because school was

out for the summer, he could not conduct a disciplinary

hearing until August 28, the first day of the 2002-2003 year.

In the meantime, soon after school recessed for the summer, Lifton went to Mexico on a vacation with her sister.
4 No. 04-2501

However, she had not completed required year-end tasks

such as turning in her attendance records, lesson plan

books, and room keys, and cleaning out her classroom.

When she returned from vacation, Lifton attended an LSC

meeting on July 11, where she learned that the first item on

the council’s agenda was the renewal of Meuer’s contract.

Lifton previously had expressed her view that Meuer’s

contract should not be renewed by the LSC during the

summer, preferring that the committee address the matter

in the fall. In her opinion renewal of Meuer’s contract was

not a rush and other issues should be given priority. Accordingly, at the July 11 meeting, Lifton moved to form a

“vision committee” to evaluate Meuer and consider adding

terms to his contract; this motion was adopted. Lifton’s

kindergarten proposal was also raised at the July 11

meeting, and Meuer and Lifton met a few days later to

discuss it again. 

Later in July, Lifton sent a third letter home—addressed

“Dear Kindergarten Friend” and sent to her students—in

which she described her trip to Mexico. Among other things,

she told the children that “a bird pooped” in her lap at a

restaurant and that her sister “got in big trouble for taking

things that don’t belong to her.” This letter also troubled

Meuer; he had not seen it in advance and questioned

whether the content of the letter was appropriate for a

letter from a teacher.

Meuer met with Lifton and her union representative on

August 28, 2002. The meeting lasted more than an hour,

although they did not finish their business that day and

no discipline was ever initiated by Meuer. The same day,

however, in separate proceedings, the Chicago Board of

Education issued a “warning resolution” to Lifton, recommending a fifteen-day suspension. The warning resolution

cited twelve deficiencies in Lifton’s performance, mostly

relating to the sending of unauthorized and inappropriate

letters home, as well as her failure to grade student report
No. 04-2501 5

cards and finish year-end duties. The warning resolution

was recommended by defendant Arne Duncan, the chief

executive of the Chicago Public Schools. Duncan testified in

an affidavit that he had no knowledge about the predisciplinary meeting at the school between Lifton and Meuer,

nor did he know that Lifton had opposed the early renewal

of Meuer’s contract.

Lifton kept teaching for approximately two weeks after

the warning resolution was issued. On September 12 she

attended parents’ night at the school; the assistant principal was in her classroom observing her interaction with

parents. That same night the LSC held a meeting at which

Lifton told council members that she was the victim of a

“witch hunt” because she had not supported Meuer’s early

contract renewal. Lifton taught her class the next day (a

Friday), but thereafter did not return to school, first taking

a personal day and then nine consecutive sick days. After

the fifth sick day, the assistant principal asked for a doctor’s note, a request Lifton found upsetting. Lifton eventually went on medical leave through January 30, 2003, when

she resigned. She never served a suspension.

II. Discussion

Lifton contends that her discipline was retaliation for

First Amendment-protected speech, namely, her proposed

changes to the kindergarten program and her opposition to

Meuer’s early contract renewal. She also claims that she

was denied due process of law, defamed, and subjected to

intentional infliction of emotional distress. Our review of

the district court’s grant of summary judgment is de novo.

Russell v. Harms, 397 F.3d 458, 462 (7th Cir. 2005).

A. Retaliation Claim

A three-step analysis applies to Lifton’s retaliation claim:
6 No. 04-2501

1 That is to say, the defendants have conceded that the speech

touched on matters of public concern, and they do not argue that

the school’s interest in promoting efficient and effective public

service outweighs Lifton’s interest in speaking. Pickering v. Bd. of

Educ. of Township High Sch. Dist. 205, Will County, Ill., 391 U.S.

563, 568 (1968); Gustafson v. Jones, 290 F.3d 895, 909 (7th Cir.

2002).

(1) was her speech constitutionally protected; (2) if so, was

the defendants’ action against her motivated by her constitutionally protected speech; and (3) if she can show that her

constitutionally protected speech was a substantial or

motivating factor in the defendants’ action against her, can

the defendants show that they would have taken the same

action in the absence of her exercise of her First Amendment rights? Vukadinovich v. Bd. of Sch. Trs. of N. Newton

Sch. Corp., 278 F.3d 693, 699 (7th Cir. 2002). The first two

inquiries make up a plaintiff’s prima facie retaliation case,

and the third allows an employer to rebut that case by

showing that it would have taken the adverse employment

action regardless of the plaintiff’s protected speech. If the

employer carries its burden in the third step of the analysis,

then the burden shifts back to the plaintiff to show that the

proffered reasons for the employment action were

pretextual. Id.

The parties agree that Lifton has satisfied the first

prong—that her speech regarding the early renewal of

Meuer’s contract and restructuring Norwood Park’s kindergarten program was constitutionally protected.1

 Turning

then to the second factor in the analysis, Lifton must come

forward with some evidence to show that her constitutionally protected speech was a substantial or motivating factor

behind the disciplinary action taken against her. It is not

enough to rely on the mere fact that the discipline chronologically followed the protected activity. Smith v. Dunn, 368

F.3d 705, 708 (7th Cir. 2004); see also Wright v. Ill. Dep’t of
No. 04-2501 7

2 There is some dispute whether Lifton knew about the school’s

policy that required letters to parents be cleared with the principal in advance. The relevant issue, however, is the defendants’

motivation, not what Lifton knew, and she does not argue that the

Board was not entitled to enforce the policy.

Children & Family Servs., 40 F.3d 1492, 1500-01 (7th Cir.

1994) (courts generally cannot “draw strong conclusions

from the mere fact that protected speech may have preceded

an adverse employment decision”). The typical retaliation

case involves a whistleblower or disgruntled employee who

threatens the status quo in such a way that a supervisor

might logically want to silence the whistleblower’s voice.

See, e.g., Gazarkiewicz v. Town of Kingsford Heights, 359

F.3d 933, 936 (7th Cir. 2004) (posting fliers criticizing public

works superintendent for delayed response to hazardous

material spill); Ceballos v. Garcetti, 361 F.3d 1168, 1176

(9th Cir. 2004) (disclosing misrepresentations in sheriff’s

deputy’s warrant application); Martinez v. Tex. Dep’t of

Criminal Justice, 300 F.3d 567, 570 (5th Cir. 2002) (reporting a prison beating); Gonzales v. Dallas County, 249 F.3d

406, 407 (5th Cir. 2001) (testifying about bribes); Barker v.

City of Del City, 215 F.3d 1134, 1139 (10th Cir. 2000)

(criticizing city council for violations of the law); Vasbinder

v. Scott, 976 F.2d 118, 119-20 (2d Cir. 1992) (alerting law

enforcement to potential embezzlement).

The central retaliatory action Lifton complains about is

the warning resolution issued on August 28, 2002, by the

Chicago Board of Education. That resolution cited her for

sending unauthorized and inappropriate correspondence to

parents and students; failing to grade report cards, instead

telling parents to grade their own children; and failing to

complete other year-end tasks.2

 To meet the second prong

of her prima facie case, Lifton must show that this warning

resolution was motivated by her speech about either
8 No. 04-2501

3 Lifton never served a suspension and therefore never suffered

any tangible harm—loss of pay or benefits, for example—as a

result of the warning resolution. We recognize that “courts have

declined to find that an employer’s actions have adversely affected

an employee’s exercise of his First Amendment rights where the

employer’s alleged retaliatory acts were criticism, false accusations, or verbal reprimands.” Suarez Corp. Indus. v. McGraw, 202

F.3d 676, 686 (4th Cir. 2000). But because “the injury alleged . . .

need not be great in order to be actionable,” Bart v. Telford, 677

F.2d 622, 625 (7th Cir. 1982), we proceed by assuming without

deciding that the warning resolution’s recommendation of a

fifteen-day suspension, even though it was not actually served,

could constitute a sufficiently adverse employment action so as to

give rise to a retaliation claim. See Spiegla v. Hull, 371 F.3d 928,

941 (7th Cir. 2004).

Meuer’s contract or her kindergarten proposals.3

As to the first of these categories of protected speech,

Lifton has presented no evidence connecting the Board’s

warning resolution to the views Lifton expressed about

Meuer’s early contract renewal. We note as an initial

matter that Lifton did not actually oppose the renewal of

Meuer’s contract; she proposed, rather, that the LSC postpone consideration of the issue until later in the year, after

an evaluation by a “vision committee” could be conducted.

That fact dilutes the notion that Lifton’s speech about

Meuer’s contract motivated the Board’s disciplinary action.

More important, however, is Lifton’s inability to point to

any evidence linking her speech on the contract renewal

issue to the warning resolution issued by the Board.

Duncan, the district executive who recommended that the

Board issue the warning resolution, had no knowledge of

Lifton’s expressed views on the early renewal of Meuer’s

contract, a fact that Lifton has conceded. See Carreon v. Ill.

Dep’t of Human Servs., 395 F.3d 786, 792 (7th Cir. 2005)

(although union advocacy might qualify as protected speech,

“there is no evidence that any of the individual defendants

knew of her union involvement”).
No. 04-2501 9

The remainder of Lifton’s retaliation case focuses on her

speech advocating restructuring the kindergarten program,

and she claims to have direct evidence of Meuer’s desire to

punish her for the ideas she expressed. Meuer took notes of

the meetings at which Lifton’s proposals were discussed.

One note reads: “I meet with Mrs. Lifton to get the details

prior to the LSC meeting. There are points of disagreement.” Another reads: “The LSC meeting is rather heated.

At the conclusion of the meeting I went to Mrs. Lifton and

shared that we must meet on Monday, July 15th.” Lifton

argues that these notes demonstrate that her speech about

the kindergarten program was the motivating factor behind

the warning resolution. 

To the contrary, however, when read in more complete

context, Meuer’s notes do not bear out Lifton’s claim of

retaliatory motivation related to her speech in favor of kindergarten restructuring. Rather, the notes in their totality

reflect concern about Lifton’s repeated sending of unauthorized and inappropriate communications to parents and

students, prompted in part by the negative reactions of

parents:

6/25/02 Communication from Mrs. Lifton is enclosed in

each students’ [sic] report card. Parents are in my

office, phone calls are received. 

6/25/02 P.M. I meet with Mrs. Lifton and share my

frustration and the concern parents and others have

expressed.

6/27/02 I receive another communication from

Mrs. Lifton.

. . . .

7/17/02 I am made aware that Mrs. Lifton has sent

another letter to the children in her class. Questions of

concern from some parents are expressed. Concern is

focused on the language. This is most concerning as I

had told Mrs. Lifton on the 16th not to sen[d] another
10 No. 04-2501

4 In its entirety the flyer read: “It’s not working . . . But we can

fix it! Be a part of history in the making. Take a sneak peak [sic]

at next year’s kindergarten program. Thursday, June 13, 2002.

6:00 P.M. School library. Regretfully babysitting will not be provided.”

letter to parents. Could we drop it?!!!

In any event, nothing in Meuer’s notes provides the

required link between Lifton’s proposal to change the

kindergarten program and the Board’s disciplinary action

against her. The notes reflect that Meuer (and perhaps

others) disagreed in whole or in part with Lifton’s ideas for

revamping kindergarten at Norwood Park, but there is no

evidence connecting that disagreement to the warning

resolution issued by the Board. The only evidence even

arguably close is the fact that the warning resolution was

premised in part on the unauthorized June 11 flyer, which

invited parents to the LSC meeting for a “sneak peak [sic]

at next year’s kindergarten program.” But it was the unilateral and unauthorized nature of the flyer that prompted

the discipline, not the fact that Lifton was speaking out

about restructuring the kindergarten program; there is no

evidence to suggest that Lifton was being punished for

communicating her ideas about changing the school’s

kindergarten program.4

 The flyer merely announced the

meeting and invited attendance; it did not contain the substance of Lifton’s proposals. Without any evidence tending

to show that her speech proposing changes to the kindergarten program was a motivating factor behind the warning

resolution issued by the Board, Lifton cannot establish her

prima facie case of retaliation. 

Lifton’s case also fails the third step in the analysis (assuming there was evidence of retaliatory motive); she has

not produced evidence that the Board’s stated reasons for

the warning resolution were pretextual. Vukadinovich, 278
No. 04-2501 11

F.3d at 699. The burden is first on the defendants to show

a legitimate justification for Lifton’s discipline—that is,

that she would have received the warning resolution regardless of her protected speech. If the defendants carry

that burden, then Lifton must show that the defendants’

proffered reasons for disciplining her were a pretext for retaliation against her protected speech. Id.

As we have noted, the warning resolution issued by the

Board cited Lifton for unauthorized and inappropriate

communications to parents and students and failure to

grade her students’ report cards and complete certain other

year-end duties. Lifton does not argue that these reasons

were illegitimate or false. Lifton suggests that the fifteenday recommended suspension was harsher than other

punishments generally handed down by the Board. Even

assuming this to be true, it does not follow that the reasons

cited by the Board were pretextual. Lifton gave her superiors several ample and legitimate reasons to discipline her.

To accept Lifton’s argument would be to substitute our

judgment about the appropriate level of discipline for that

of the Board and its chief executive; absent some evidence

of retaliatory motivation for the discipline imposed, it is

improper for us to second-guess this sort of employment

decision. See Alexander v. Wis. Dep’t of Health & Family

Servs., 263 F.3d 673, 683 (7th Cir. 2001) (federal courts are

not to act as “super-personnel boards”). The district court

properly granted summary judgment for the defendants on

Lifton’s retaliation claim.

B. Due Process

Lifton also claims she was deprived of a protected property interest without due process because her predisciplinary meeting with Meuer was a “sham.” As we have noted,

however, Lifton never served the suspension recommended

by the Board, nor did she forfeit any pay or benefits to

which she otherwise would have been entitled. An unserved
12 No. 04-2501

5 Lifton complains that at the LSC meeting in question, the

LSC chairman rolled his eyes, made sarcastic comments, and

interrupted Lifton while she was speaking. Never mind the trivial

nature of this conduct, it is not at all linked to any of the defendants except under the fanciful theory that Meuer “allowed” such

insufferable things to happen.

suspension with no pecuniary consequences does not give

rise to a due process claim. Deen v. Darosa, No. 04-2072,

2005 WL 1593372 (C.D. Ill. July 8, 2005); Luellen v. City of

East Chicago, 350 F.3d 604, 613-14 (7th Cir. 2003);

Townsend v. Vallas, 256 F.3d 661, 676 (7th Cir. 2001);

Swick v. City of Chicago, 11 F.3d 85, 86 (7th Cir. 1993).

Lifton argues in the alternative that she was constructively discharged and that this “discharge” constitutes a

deprivation of a property interest without due process.

Constructive discharge occurs when an employee resigns

because working conditions are so intolerable that a reasonable employee would feel compelled to quit. Hunt v. City

of Markham, 219 F.3d 649, 655 (7th Cir. 2000). The doctrine

of constructive discharge is limited to egregious cases, such

as, for example, where an employee is subjected to threats

or repeated racist taunting. Tutman v. WBBM-TV, Inc., 209

F.3d 1044, 1050 (7th Cir. 2002).

Lifton’s complaints do not come close to describing a

workplace so intolerable that a reasonable person would

feel compelled to quit. For example, Lifton characterizes the

infractions underlying the warning resolution as “petty”—proof, she says, that the defendants were “grasping at

anything to pin on” her. She complains about being “monitored” by the assistant principal during the September 12

parents’ night at the school. She asserts that the LSC

chairman was rude to her during a meeting and that Meuer

“allowed” this to happen.5

 Lifton also contends that the

demand for a doctor’s note after five consecutive sick days
No. 04-2501 13

was unreasonable. She alleges that Meuer “harassed” a

parent who supported her, although she does not describe

the alleged “harassment.” She complains that Meuer directed

a custodian to discard her “things, including personal

things, supplies, and educational materials,” and that the

custodian instead hid them in a closet; she does not elaborate on the timing or circumstances of the principal’s

directive to the custodian. These are trifling hardships and

undifferentiated allegations of “harassment” that do not

support a case for constructive discharge. Summary judgment dismissing Lifton’s due process claim was appropriate.

C. Defamation

Lifton also claims that Meuer defamed her when he told

the assistant principal and a parent that she was “lazy,”

“burnt out,” “looking for sympathy,” “unstable,” “resting on

her laurels,” and “doesn’t want to work.” Lifton claims these

statements were defamatory per se under Illinois law, which

recognizes a per se cause of action for defamation when the

defamatory statements are so serious that reputational

injury may be presumed. Defamation per se claims include

falsely accusing someone of committing a crime, falsely

accusing someone of having a “loathsome communicable

disease,” or, as is pertinent to Lifton’s case, falsely imputing

an inability to perform or want of integrity in the duties of

office, employment, or profession. Van Horne v. Muller, 705

N.E.2d 898, 903 (Ill. 1998).

Vague, unprovable statements and statements of opinion

do not give rise to a defamation claim, however; Illinois law

requires that the allegedly defamatory statement must

contain an objectively verifiable factual assertion. Wynne v.

Loyola Univ., 741 N.E.2d 669, 676 (Ill. App. Ct. 2000). The

district court concluded that Meuer’s comments do not meet

this requirement, and a case Lifton cites proves the point.

In Schivarelli v. CBS, Inc., the Illinois Supreme Court noted
14 No. 04-2501

that calling someone a “crook” or “incompetent” had been

held nonactionable because such bare statements contain

no verifiable factual information. 776 N.E.2d 693, 698 (Ill.

App. Ct. 2002) (citing Dubinsky v. United Airlines Master

Executive Council, 708 N.E.2d 441 (Ill. App. Ct. 1999), and

Hopewell v. Vitullo, 701 N.E.2d 99 (Ill. App. Ct. 1998)).

Similarly, the court held, the assertion that the plaintiff in

Schivarelli was “cheating the city” was not actionable,

without more, because the speaker “did not explain the

evidence that she was referring to, nor did she state why

she thought [the plaintiff] was cheating the city, how he

was cheating the city, or even what she meant by the term

‘cheating.’ ” Schivarelli, 776 N.E.2d at 698.

We agree with the district court’s conclusion that Meuer’s

offhand statements were nonactionable statements of opinion that do not contain objectively verifiable factual assertions. Summary judgment on Lifton’s defamation claim was

properly granted.

D. Intentional Infliction of Emotional Distress

Lifton’s final claim is for intentional infliction of emotional distress premised upon the issuance of the warning

resolution and the other alleged “harassment” described

above. To state a claim for intentional infliction of emotional distress, a plaintiff must show that: “(1) defendants’

conduct was extreme and outrageous; (2) defendants either

intended to inflict severe emotional distress or knew that

there was a high probability that their conduct would do so;

and (3) the defendants’ conduct actually caused severe

emotional distress.” Thomas v. Fuerst, 803 N.E.2d 619, 625

(Ill. App. Ct. 2004). “Severe emotional distress” is distress

so severe that no reasonable person could be expected to

endure it. Id.

Our evaluation of Lifton’s emotional distress claim

parallels our analysis of her constructive discharge claim.
No. 04-2501 15

Asking whether Lifton’s working conditions were intolerable and beyond that which a reasonable person could be

expected to endure is basically the same as asking whether

the emotional distress allegedly inflicted upon her was

beyond that which a reasonable person could be expected to

endure. Lifton’s emotional distress claim fails for the same

deficiencies that were fatal to her constructive discharge

claim. In addition, the defendants’ conduct cannot reasonably be characterized as extreme and outrageous— “so

extreme as to go beyond all possible bounds of decency and

be regarded as intolerable in a civilized community.”

Feltmeier v. Feltmeier, 798 N.E.2d 75, 83 (Ill. 2003). Summary judgment dismissing Lifton’s claim for intentional

infliction of emotional distress was properly granted.

For the foregoing reasons, the judgment of the district

court is AFFIRMED.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—7-22-05