Of the Central District of Illinois, sitting by designation. 

In the

United States Court of Appeals

For the Seventh Circuit

Nos. 10-3844 & 11-1104

VERONICA DASS,

Plaintiff-Appellant,

v.

CHICAGO BOARD OF EDUCATION, et al.,

Defendants-Appellees.

Appeals from the United States District Court 

for the Northern District of Illinois, Eastern Division.

No. 08 C 6045—David H. Coar, Judge.

ARGUED OCTOBER 25, 2011—DECIDED APRIL 12, 2012

Before EASTERBROOK, Chief Judge, HAMILTON, Circuit

Judge, and MYERSCOUGH, District Judge.



MYERSCOUGH, District Judge. Veronica Dass brought

this action against Paula Jeske, the Chicago Board of
2 Nos. 10-3844 & 11-1104

The Chicago Public Schools is not a suable entity. Therefore, 1

we amend the caption of this case to reflect that the Chicago

Board of Education is the proper justiciable party.

Education (Board), and the Chicago Public Schools (CPS) 1

after the Board accepted Jeske’s recommendation that

Dass not be renewed for the 2007-2008 school year and

sent Dass notice that her employment would terminate

on August 24, 2007. Dass alleged that: (1) the Board

and CPS discriminated against her on the basis of her

national origin and retaliated against her in violation

of Title VII of the Civil Rights Act of 1964, 42 U.S.C.

§§ 2000e, et seq. (Title VII); (2) the Board and CPS discriminated against her in violation of the Americans with

Disabilities Act of 1990, 42 U.S.C. §§ 12101, et seq.; and

(3) Jeske discriminated against her based on her

national origin in violation of 42 U.S.C. § 1981. Dass also

brought various state-law claims.

The district court granted defendants’ motion for summary judgment with respect to the federal claims and

declined to exercise supplemental jurisdiction over

the state-law claims. Dass appeals only from the district

court’s entry of summary judgment against her on her

claims of national origin discrimination under Title VII

and § 1981. For the reasons that follow, we affirm.

BACKGROUND

The district court compiled a detailed and comprehensive factual history of this case which can be accessed
Nos. 10-3844 & 11-1104 3

While Dass has not argued the district court’s recitation of 2

the facts was incorrect, Dass maintains the district court

ignored the requirement of Rule 56 of the Federal Rules of

Civil Procedure that the evidence be viewed in the light

most favorable to the nonmovant.

at Dass v. Chicago Pub. Sch., No. 08 C 6045, 2010 WL 4684034

(N.D. Ill. Nov. 12, 2010). Neither party contends the

district court’s recitation of the facts is inaccurate. More- 2

over, while Dass proceeded under both the direct

and indirect methods of proof before the district court,

Dass’s attorney stated during oral argument that Dass

was “not proceeding under the indirect method here.”

Dass’s submissions to this court on appeal confirm her

attorney’s representation as those submissions make

no mention of the indirect method and only address

her direct method theory. Dass has thus abandoned her

indirect method theory. See Robin v. Espo Eng’g Corp., 200

F.3d 1081, 1088 (7th Cir. 2000) (claim pursued before

district court but not raised in briefs submitted on

appeal was abandoned).

Dass taught a fifth-grade class at Pablo Casals Elementary School (Casals) during the 2005-2006 school year.

Because of an error by the Board’s Human Resources

Department, Dass was displaced after that school year

when Casals lost teaching positions due to budget constraints. After Dass won her grievance, the Board reinstated her and she was assigned to teach a seventh-grade

class at Casals even though a third-grade class was

open. Dass requested and received medical leave in

December 2006. She did not return the rest of the school
4 Nos. 10-3844 & 11-1104

year. In the spring of 2007, Jeske recommended to the

Board that Dass be non-renewed for the 2007-2008

school year. The Board accepted the recommendation

and informed Dass that her employment would

terminate in August 2007.

Dass is very specific as to what evidence she claims

is direct evidence of national origin discrimination. Because we assume the parties’ familiarity with the

district court’s opinion, and for the sake of brevity, we

recount only those facts surrounding Dass’s proposed

direct evidence of discrimination and those additional

facts necessary to our analysis of Dass’s direct method

theory and our holding.

I. Facts Predating the 2005-2006 School Year

Dass was born in Hyderabad, India. The Board first

hired Dass as a teacher in 1991. In 2002, Dass was hired

at Casals. At the time the Board hired Dass to teach at

Casals, Dass had a Type 03 teaching certificate from the

State of Illinois, which allowed her to teach any grade

between kindergarten and eighth grade.

Dass taught second grade during the 2002-2003 school

year, and third grade during the 2003-2004 and 2004-

2005 school years. Aleen Donaldson was the principal at

Casals during this time. While Donaldson rated Dass’s

overall performance on her annual teacher evaluations during these years as “excellent,” Donaldson never

recommended Dass for tenure. Donaldson testified at

her deposition that Dass “was never really a strong disci-
Nos. 10-3844 & 11-1104 5

plinarian.” Donaldson testified Dass was not strict

or consistent in her discipline. Donaldson thought it

was possible to be a strong teacher, but not a strong

disciplinarian.

Donaldson retired after the 2004-2005 school year.

However, before Donaldson retired, she non-renewed

Dass for the 2005-2006 school year. Dass lost her teaching

position but reapplied to teach at Casals for the 2005-

2006 school year. Dass was rehired and assigned to

teach the fifth grade. Casals had an interim principal

for several weeks at the beginning of the 2005-2006

school year until Jeske became principal in September 2005.

II. Jeske’s 2005-2006 Evaluations of Dass

Jeske conducted three formal observations of Dass’s

performance in the classroom during the 2005-2006 school

year. Those observations took place on January 10, April

28, and May 16, 2006.

After Jeske’s January 10, 2006 observation of Dass, Jeske

checked the “strength column” in 27 out of 30 applicable

categories on the Classroom Teacher Visitation Form.

While the district court referred to Jeske’s evaluation

of Dass’s performance as “generally positive,” Jeske’s

deposition testimony shows that a checkmark in the

strength column did not necessarily mean the teacher

being observed was doing well in that category. Jeske

testified a checkmark on the left side of the strength

column meant the teacher was “doing a real good job in

all those areas.” However, a checkmark on the right side
6 Nos. 10-3844 & 11-1104

of the strength column indicated “[t]hat you are not

doing so well in that. You need to work on it.” Many of

the checkmarks in the “strength column” appear to be

on the right side of the column on the performance form

for Dass. Jeske also noted on the form that Dass needed

“to improve classroom management so lessons are

actively participated in by students.”

The Classroom Teacher Visitation Form that Jeske

completed following the April 28, 2006 observation

of Dass’s classroom reflected far more negatively on

Dass’s performance than the January 2006 review did.

Jeske marked many more weaknesses than before. Additionally, Jeske noted that the “English lesson on sentences is fragmented” and that “kids were shooting

rubber bands, dancing, talking, out of seats, drawing

[and] brushing hair.”

Jekse observed Dass on May 16, 2006, and gave Dass

another negative review. Jeske’s notes following this

observation indicated there were 22 children present in

class, but only 7 were following along with Dass, that

three boys were up throwing paper balls, a boy and girl

were hitting each other, one boy was fanning himself

with a book, two boys were making paper animals, one

boy was sitting backwards on his chair, and one girl

was doing her hair. Dass did not reprimand any of them.

Finally, Jeske gave Dass an “unsatisfactory” rating on

her annual evaluation at the conclusion of the 2005-2006

school year. Jeske thought that Dass had poor classroom

management and that most of the students were off task

during class. Moreover, Dass frequently had to refer
Nos. 10-3844 & 11-1104 7

students for discipline. Finally, Jeske noted that Dass

did not follow suggestions made by the administration.

Dass admitted she experienced difficulty in managing

and disciplining students. However, Dass denied that her

disciplinary problems were more abundant than those

experienced by other teachers.

III. Incidents Dass Claims Are Direct Evidence of Discrimination

Dass sets forth the following evidence as direct evidence she was discriminated against based on her

national origin: (1) Jeske’s alleged statement telling Dass

to look for a teaching job on the North Side where most

of the Indian kids go; (2) Jeske’s vehement opposition

to Dass’s grievance; (3) Jeske’s refusal to assign Dass to

an open third-grade class and instead assigning her to

a seventh-grade class; and (4) Jeske’s decision to send

her assistant principal to formally observe and report on

Dass, three times in one day, shortly after Dass started

teaching the seventh-grade class.

A. Jeske’s Alleged Statement

Jeske met with Dass several days after the April 28, 2006

observation to discuss the evaluation of Dass. Dass

testified that during this meeting Jeske stated that

Dass should start looking for a job “on the North

Side where most of the Indian kids go.” Jeske denies

making the comment, but on review of a grant of sum-
8 Nos. 10-3844 & 11-1104

A PAT is a full-time teacher serving the probationary period 3

set forth in 105 ILCS 5/34-84. Teachers in their first, second, or

third year of probationary service could be terminated without

reason at least 30 days before the end of the school year.

Teachers in their fourth year of probationary service must

be given a reason for termination at least 30 days before the

end of the school year.

Generally, a TAT is assigned to temporarily fill a position 4

that is vacant due to an appointed teacher taking leave.

mary judgment against Dass, we must accept Dass’s

testimony as true.

B. Jeske’s Opposition to Dass’s Grievance

Each year, a list of teachers that are classified as

a probationary assigned teacher (PAT) is sent to all 3

principals so that the principals can decide which

PATs they wish to retain and which they wish to nonrenew. The Board’s Human Resource Department (HR

Department) erroneously misclassified Dass as a temporary assigned teacher (TAT) . Therefore, Dass did not 4

appear on the list of PATs sent to Jeske in the spring of

2006. Declining student enrollment projections for the

2006-2007 school year cost Casals six teaching positions. Dass was one of the six teachers displaced by

Human Resources because of being erroneously misclassified as a TAT rather than a PAT. Jeske had no role

in the misclassification of Dass as a TAT or the displacement that resulted from that misclassification.
Nos. 10-3844 & 11-1104 9

Dass filed a grievance challenging the misclassification

and displacement. While Jeske eventually learned Dass

had been erroneously classified as a TAT, Jeske still

objected to Dass’s return to Casals. In Jeske’s view, if it

were not for the misclassification of Dass, Jeske could

have non-renewed Dass in the spring of 2006. Jeske

sent several emails to the Board’s HR Department in

which she indicated her desire that Dass not be returned

to Casals. One email stated, “If Dass is truly a PAT

I should have been able to simply non-renew her.

Believe me I have tried everything possible to do so.”

Another email stated, “I have the Department of Justice

breathing down my back and need to hire a Spanish

bilingual teacher before my November 1 audit.” Dass

contends that these comments, combined with Jeske’s

alleged comment that Dass should teach on the North

Side where the Indian kids go to school and her vigorous

opposition to Dass being rehired at Casals, show Jeske’s

discriminatory intent. The Board agreed that Dass

had been misclassified and should be returned to Casals.

C. Jeske’s Decision to Assign Dass to a Seventh-Grade

Rather than Third-Grade Class

Upon Dass’s return to Casals in November 2006, Jeske

assigned Dass to teach a seventh-grade class, even though

there was an open third-grade class. That seventh-grade

class had been taught by Carla Miller from August 2006

until September 2006 and Erin Yost, who took over

the class from Miller and taught it until Dass’s November 2006 reinstatement and assignment to the class.
10 Nos. 10-3844 & 11-1104

Jeske also decided not to return Dass to a fifth-grade class 5

that had started the 2006-2007 school year without a regular

teacher. The class had been covered by a substitute teacher.

However, before Dass returned, Jeske hired a new teacher

specifically for the fifth-grade class. Dass does not contend

she should have been assigned to the fifth-grade class.

When Dass returned, Jeske reassigned Yost to the open

third-grade class.

Dass alleges that Jeske manipulated the situation by

reassigning Yost to the third grade so that Jeske could

assign Dass to the seventh-grade class, which Dass

alleges had proven itself to be very difficult to discipline. Dass opines that Jeske, knowing that Dass had

trouble with discipline while teaching a fifth-grade

class during the 2005-2006 school year, assigned Dass

to the seventh-grade class so Dass would be more likely

to fail than if she were assigned to the teach the third

grade—a grade Dass argues she excelled at teaching

in prior years.

Jeske offered several reasons for assigning Dass to

the seventh-grade class rather than to the open thirdgrade class. Among Jeske’s reasons were that: (1) even 5

before Dass was reinstated at Casals, Jeske had planned

on moving Yost to the third grade and requesting a

teacher with a bilingual Spanish endorsement to teach

the seventh grade so that Casals could comply with

an upcoming audit; (2) input she received from Lead

Literacy Teacher, Renee Mackin, indicated Dass had

serious problems when she previously taught third
Nos. 10-3844 & 11-1104 11

At her deposition, Jeske testified that “bridge” grades (in 6

Chicago, the third, sixth, and eighth grades) are important

because a child will have to go to summer school if they

do not receive at or above “a particular cut score” on the

ISAT. If the child does not reach that score after summer

school they have to repeat the grade.

grade; (3) Yost, who Jeske considered a much stronger

teacher than Dass, was needed in third grade because it

is a “bridge” year, or critical testing year, and seventh 6

grade was not; and (4) Yost had been trained in DIBELS

and Reading First, two new programs for kindergarten

through third grade that Dass had not been trained

in (according to defendants, the Casals administration

did not view Dass as a good candidate for the Reading

First Program given Dass’s lack of training in the

DIBELS assessment that corresponded with the

program and her difficulty in maintaining order in her

classroom). Further, at her deposition, Jeske was asked

whether any consideration was given as to what was

best for the seventh-grade class when assigning Dass

and reassigning Yost. Jeske responded, “Yes, I needed a

teacher that had qualification to teach science, and

Mrs. Dass is highly qualified in science, in physical

science, general science, and biological science.” Jeske

also stated that she decided a “primary grade assignment would be more appropriate for” Yost. Some of

the male students in the seventh-grade class had made

inappropriate comments of a sexual nature to Yost.

In response to Jeske’s explanations, Dass pointed out

that Yost had never taught the third grade before. More-
12 Nos. 10-3844 & 11-1104

over, Yost had discipline issues in the classroom and

struggled with classroom management. In her response

to defendants’ statement of uncontested facts, Dass

also claimed that Yost was not trained in the Reading

First Program until after she was reassigned to the

third grade at Casals.

We note that Yost was not renewed after the 2006-

2007 school year. At her deposition, Jeske testified she

did not renew Yost “because in [seventh] grade, she

didn’t have much success. And I knew that the next

year, whoever was going to come back, was going to

have [seventh] grade. She did a pretty good job or a

better job, I would say, in [third] grade than she did

in [seventh], but I need seventh grade teachers, so I

didn’t renew her either.” Of further note is the fact that

after Dass took a medical leave of absence in December 2006, a Ms. Provost took over Dass’s seventh-grade

class on a full-time substitute basis. Jeske did not renew

Ms. Provost after the 2006-2007 school year. 

D. Jeske’s Direction to Her Assistant Principal to Observe

Dass Three Times in One Day

Dass returned to teach at Casals at some point during

the first half of November 2006. Defendants claim it

was November 6 or 7, 2006, while Dass states it was no

earlier than November 13, 2006.

On November 16, 2006, assistant principal Bennie

Bonaminio conducted three observations of Dass’s classroom, at 10:04 a.m., 10:55 a.m., and 12:52 p.m. At his
Nos. 10-3844 & 11-1104 13

While not within the first two weeks of Yost’s assignment 7

to the seventh-grade class, Jeske did make an evaluation of

Yost’s performance during the short time she was teaching

the seventh-grade. The evaluation noted that “classroom

management must improve for lessons to be effective and

that Yost needed to work on daily routines and consistency.”

deposition, Bonaminio could not recall why he returned

to the classroom for additional observations but stated,

“I would think that I was asked to return to the classroom by the Principal[.]” Dass alleges that Jeske took

the unusual step of having Bonaminio observe her classroom so quickly after Dass started because Jeske knew

Dass would have trouble with discipline in the seventhgrade class and Jeske wanted to send her assistant principal to observe and record the problems Jeske knew

Dass would have.

Bonaminio stated that in his experience as an

assistant principal, most evaluations of teachers tended

to take place at the end of the school year. Bonaminio

had never performed an evaluation within the first

two weeks of a semester. However, beginning with the

2006-2007 school year, principals could make formal

observations of teachers at any time during the school

year. Prior to the 2006-2007 school year, principals

could not make a formal observation of a teacher until

at least the 20th school day of the year.7
14 Nos. 10-3844 & 11-1104

IV. Dass’s Performance as a Seventh-Grade Teacher During

the 2006-2007 School Year

During Bonaminio’s first visit he noted in the “Comment” section of the Classroom Teacher Visitation

Form that Dass’s classroom lacked control, that school

security had been called to the class twice that day

prior to his first visit, that students were walking

around the classroom and were using inappropriate

language, that few students were actively working on

an assignment, and that they seemed to lack direction

or purpose. Bonaminio’s written narrative following the

second visit noted that the classroom seating arrangement had not been established and a student moved

around from table to table, students were working

on various assignments at one time without any

clarity from Dass as to what was supposed to be completed, students spoke out of turn in class without

being corrected, students argued with Dass, and Dass

had not established any classroom routines for students.

The written narrative following the third visit to Dass’s

classroom stated that students were out of their seats,

were making noises and yelling out continually,

seats were overturned, the classroom was littered with

paper, the classroom library was in disarray, only a

small percentage of students were doing any work, and

the students were laughing and making jokes all afternoon. Dass admits that these observations accurately

reflect what happened in her classroom on November 16,

2006. However, Dass points out this was “the third

or fourth day of [her] being there.”
Nos. 10-3844 & 11-1104 15

Dass testified that Jeske observed her performance

on November 21, 2006. When Jeske walked in, the class

was in total mayhem and the classroom was littered

with books on the floor because Dass’s students had

been throwing them at each other that morning. Some

of Dass’s students were playing with their MP3 players

and others were sitting in groups. None of the students

were responding to Dass’s efforts to direct them back

into their assigned seats. According to Dass, Jeske did

not try to find out what was going on in the classroom

and Jeske’s presence did not stop the students from

misbehaving.

Jeske also observed Dass on November 29, 2006. She

visited Dass’s classroom three times that day and noted

the following in her written narrative: “On three

separate visits to class, each time children were writing

definitions and answering questions from the text. [Dass]

offered no instruction, explanation or assistance to the

students. Most of the students were off task. During

one class, only two students were doing the assigned

work. At one point[,] six kids were wandering around

the classroom at will.” Jeske further noted that kids

were frequently sent out of class for Band-Aids and

Kleenex. When Dass was dismissing the class in the

stairwell, only three students were with her and

the rest had wandered off. Jeske and Dass met on December 1, 2006 to discuss the evaluation. Dass refused to

sign to acknowledge receipt of the evaluation form

because she believed she was being treated unfairly,

and Jeske allowed the students to view her written observations that were critical of Dass.
16 Nos. 10-3844 & 11-1104

While not related to Dass’s seventh-grade performance, 8

Candelario had to station his chair outside of Dass’s classroom door when she was a fifth-grade teacher because Dass’s

problems managing the class had gotten so severe and

Candelario was called to her room much more often than to

any other room.

Renee Mackin, who had been assigned by Jeske to

help struggling teachers, visited Dass’s class at least

once a week to model effective teaching strategies for

Dass. Mackin noticed that Dass had significantly

more discipline and management problems than other

seventh-grade teachers. Mackin observed Dass’s class

and noticed the students were out of their seats, were

throwing things at each other, and were not on task.

Mackin gave Jeske her opinion that Dass was a weak

teacher. Dass maintains she was not unique in needing

and receiving assistance from Mackin.

Jose Candelario was a security guard at Casals.

Candelario had spent an inordinate amount of time

addressing disciplinary problems in both Dass’s fifthgrade and seventh-grade classes. Other seventh-grade

teachers had problems with discipline, but Candelario

had more problems with Dass than other teachers. 8

Dass admits that while she served as a seventh-grade

teacher, her classroom was out of control—specifically

that her students did not pay attention to her and were

disruptive. Dass had difficulty managing her classroom

every single day. She also admits telling Jeske on

several occasions that she could not handle her teaching
Nos. 10-3844 & 11-1104 17

duties as a seventh-grade teacher. Dass also told Jeske

that she was unable to get her students to respond to her

or follow basic directives from her. Dass explained to

Jeske that the disciplinary problems were making it

difficult to teach her students.

V. Dass’s Medical Leave and Eventual Non-renewal for the

2007-2008 School Year

In December 2006, Dass requested and received

medical leave to be effective from December 4, 2006 until

June 17, 2007. Dass began her leave on December 4, 2006,

and did not return the rest of the school year. In

March 2007, while Dass was on medical leave, Jeske

recommended to the Board that Dass be non-renewed

for the 2007-2008 school year. Board rules and policies

allow for a probationary teacher on medical leave to

be non-renewed as long as the non-renewal is not

because of the medical leave. In April 2007, Dass

received a notice from the Board that informed her that

her employment would terminate on August 24, 2007.

As stated, Jeske also recommended that both Yost and

Ms. Provost, the teacher hired to substitute for Dass

while Dass was on medical leave, as well as two other

teachers, be non-renewed for the 2007-2008 school year.

Yost, Provost, and the two other teachers were not of

Indian origin and were all born in the United States.

The district court granted summary judgment for the

defendants on Dass’s federal claims. This appeal followed. We affirm.
18 Nos. 10-3844 & 11-1104

ANALYSIS

I. Legal Standard

We review the district court’s decision to grant summary judgment de novo. Ashman v. Barrows, 438 F.3d 781,

784 (7th Cir. 2006). Summary judgment is appropriate

“if the movant shows that there is no genuine dispute as

to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). All facts

are construed and all inferences are drawn in favor of

the nonmovant. Foskett v. Great Wolf Resorts, Inc., 518

F.3d 518, 522 (7th Cir. 2008). With this standard in mind,

we turn to Dass’s claim of employment discrimination based on her national origin.

II. Dass’s National Origin Discrimination Claim Under

Title VII and § 1981

Dass claims that (1) Jeske’s decision to assign Dass to

the seventh-grade class and (2) Jeske’s recommendation

to the Board to non-renew Dass for the 2007-2008

school year, and the Board’s acceptance of that recommendation, were acts of discrimination based on Dass’s

national origin in violation of Title VII and § 1981. Discrimination claims under Title VII and § 1981 are nearly

identical, and Dass treats them identically. Burnell v.

Gates Rubber Co., 647 F.3d 704, 708 (7th Cir. 2011). Accordingly, we apply the same analysis to Dass’s claims

against Jeske and the Board.

Dass may attempt to prove her national origin discrimination claims under Title VII and § 1981 under either the
Nos. 10-3844 & 11-1104 19

This phrase “adverse employment action” does not actu- 9

ally appear in the statute. The statutory term is “discrimination.” The phrase “adverse employment action” is a “judicial

gloss” that “often may help to express the idea—which the

Supreme Court has embraced—that it is essential to distinguish between material differences and the many day-to-day

travails and disappointments that, although frustrating, are

not so central to the employment relation that they amount

to discriminatory terms and conditions.” Minor v. Centocor,

Inc., 457 F.3d 632, 634 (7th Cir. 2006).

direct or indirect method. See Montgomery v. Am. Airlines,

Inc., 626 F.3d 382, 393 (7th Cir. 2010); Cerutti v. BASF Corp.,

349 F.3d 1055, 1060 (7th Cir. 2003). Dass elected to

abandon her indirect method theory on appeal and proceed under only the direct method.

Even though Dass is proceeding under the direct

method, Dass still must demonstrate she suffered an

adverse employment action. Lewis v. City of Chicago, 9

496 F.3d 645, 652-53 (7th Cir. 2007) (citing Rhodes v.

Illinois Dep’t of Transp., 359 F.3d 498, 504 (7th Cir. 2004)

(“Whether the plaintiff proceeds by the direct or indirect

method of proof, he must show a materially adverse

employment action”)). Therefore, before addressing

Dass’s direct method theory, we will address what

adverse employment actions are at issue here. Dass

contends she suffered two adverse employment actions.

First, Dass argues the decision to non-renew her was

an adverse employment action. Defendants do not

dispute this. The second adverse employment action that

Dass alleges she suffered was being assigned to teach
20 Nos. 10-3844 & 11-1104

seventh grade rather than third grade. Defendants,

citing this court’s decision in Lucero v. Nettle Creek Sch.

Corp., 566 F.3d 720 (7th Cir. 2009), argue the decision to

assign Dass to teach the seventh grade was not an

adverse employment action.

A. The Decision to Assign Dass to the Seventh-Grade Class

Upon Dass’s Return to Casals in November 2006 Was

Not an Adverse Employment Action

An adverse employment action must “materially alter

the terms and conditions of employment.” Stutler v. Ill.

Dep’t of Corr., 263 F.3d 698, 703 (7th Cir. 2001). A

materially adverse employment action is more than a

mere inconvenience or an alteration of job responsibilities. Rhodes v. Ill. Dep’t of Transp., 359 F.3d 498, 504

(7th Cir. 2004). “While adverse employment actions

extend beyond readily quantifiable losses, not everything that makes an employee unhappy is an actionable

adverse action.” O’Neal v. City of Chicago, 392 F.3d 909,

911 (7th Cir. 2004) (quotation omitted). 

The Seventh Circuit has articulated three general categories of actionable, materially adverse employment

actions:

(1) cases in which the employee’s compensation,

fringe benefits, or other financial terms of employment are diminished, including termination; (2) cases

in which a nominally lateral transfer with no

change in financial terms significantly reduces the

employee’s career prospects by preventing her from
Nos. 10-3844 & 11-1104 21

using her skills and experience, so that the skills are

likely to atrophy and her career is likely to be

stunted; and (3) cases in which the employee is not

moved to a different job or the skill requirements of

her present job altered, but the conditions in which

she works are changed in a way that subjects her to

a humiliating, degrading, unsafe, unhealthful, or

otherwise significantly negative alteration in her

workplace environment.

Nichols v. S. Illinois Univ.-Edwardsville, 510 F.3d 772, 780

(7th Cir. 2007) (quoting O’Neal, 392 F.3d at 911). Dass

claims that the assignment to the seventh grade was a

nominally lateral transfer that reduced her career

prospects by preventing her from using her skills or

experience and was a change in the conditions in which

she worked that subjected her to a significantly negative alteration in her work environment. We disagree.

Defendants cite Lucero as support for their argument

that the decision to assign Dass to teach seventh grade

rather than third grade was not an adverse employment

action. In Lucero, the plaintiff, a female Hispanic teacher,

was reassigned from teaching 12th-grade English to

teaching 7th-grade English. Lucero, 566 F.3d at 727.

The plaintiff responded by bringing retaliation and discrimination claims against her school system, its administrators, and members of the school board of trustees.

Id. at 723. The retaliation claims were brought under

Title VII of the 1964 Civil Rights Act (42 U.S.C. § 2000e3(a)) and Title IX of the Education Amendments of 1972

(20 U.S.C. § 1681(a)). Id. at 728. The plaintiff’s discrim-
22 Nos. 10-3844 & 11-1104

ination claims were brought pursuant to Title VII,

Title IX, and § 1981. Id. at 730.

To prevail on the retaliation claims, the plaintiff had

to establish that she suffered a material adverse employment action. Id. at 728. The plaintiff argued her reassignment from teaching 12th-grade English to teach 7thgrade English was an adverse employment action

“because her teaching reassignment would dissuade

reasonable teachers from making or supporting a charge

of discrimination . . . and teaching English 7 is less prestigious than teaching Seniors.” Id. at 729. This court

rejected this argument, stating that the plaintiff’s

“personal preference is not sufficient to establish an adverse action.” Id. at 730. This court went on to reject

the plaintiff’s argument and noted that the plaintiff

“was not reassigned to a position consisting of objectively

less desirable duties.” Id. at 729. The court reasoned

that the plaintiff “continued to teach the same

academic subject in the same building and under the

same conditions after her reassignment. In fact, her reassigned duties were the same teaching duties she successfully performed for all but one year of teaching for

the School Corporation.” Id. Moreover, the plaintiff’s

compensation, benefits, and workplace environment

did not change. Id. at 730.

The Lucero plaintiff also had to demonstrate a materially adverse employment action that resulted from

the alleged discrimination to survive summary judgment on her discrimination claim. Id. While the plaintiff

argued her career prospects were damaged and her
Nos. 10-3844 & 11-1104 23

attractiveness to other school districts was diminished,

she did not have the evidence to support these claims.

Id. at 730-31. The court concluded the plaintiff had not

submitted enough evidence to show a materially adverse employment action. Id. at 731.

In the case sub judice, Dass does not claim a loss of

prestige. Instead. Dass claims she was denied a position

for which she was best suited and put in a different

and more difficult position—the result of which was a

significant alteration of her work environment and impairment of her ability to succeed as a teacher. Dass’s

appellate brief states that unlike the plaintiff in Lucero,

“Dass has evidence her workplace changed because of

her assignment to teach 7th grade instead of 3rd grade.”

See Dass’s Appellate Brief, at 22. However, Dass does

not list any of this “evidence.” Her subjective belief

that seventh grade is so much more difficult to teach

than third grade such that being assigned to seventh

grade altered her work environment is not sufficient to

make that assignment a materially adverse employment action. Moreover, this argument ignores the fact

that Dass taught fifth grade, not third grade, during the

school year prior to being assigned to the seventh grade.

In other words, Dass was not reassigned from the third

grade to the seventh grade. She was assigned to the

seventh grade after she won her grievance and came

back to teach in the middle of the school year. As

stated, the fact she was not assigned to her preferred

class does not make this a materially adverse

employment action. Under Dass’s theory, if Jeske had

reassigned Dass to the fifth grade upon her return, this
24 Nos. 10-3844 & 11-1104

would also be a materially adverse employment action

since Jeske knew Dass struggled with the fifth grade

the year before. Such cannot be the case. Further, there

is no evidence that Dass’s responsibilities or pay were

reduced, or that her career prospects were damaged

or that her attractiveness to other school districts was

diminished. Dass has not submitted sufficient evidence

to raise a genuine factual issue as to whether her assignment to teach seventh grade rather than third grade

was an adverse employment action resulting from

alleged discrimination. That the seventh-grade class she

was assigned to may have been more unruly than thirdgrade students does not make Dass’s assignment to the

seventh grade a materially adverse employment action.

Accordingly, the only adverse employment action

Dass suffered was the termination. However, while the

decision to assign Dass to the seventh grade was not an

adverse employment action, we will consider that assignment as a part of Dass’s argument, addressed below,

that there was a mosaic of circumstantial evidence of

discrimination.

B. Dass Has Not Provided Sufficient Circumstantial Evidence of Discrimination for Her Direct Method Theory

of Discrimination to Survive Summary Judgment

“Under the direct method, the plaintiff must produce

either direct or circumstantial evidence that would

permit a jury to infer that discrimination motivated an

adverse employment action.” Diaz v. Kraft Foods Global,

Inc., 653 F.3d 582, 587 (7th Cir. 2011). This court has
Nos. 10-3844 & 11-1104 25

stated that direct evidence consists of either an “outright

admission by the decisionmaker that the challenged

action was undertaken because of the [plaintiff’s national origin]” or a “convincing mosaic of circumstantial

evidence . . . that point[s] directly to a discriminatory

reason for the employer’s action.” Davis v. Con-Way

Transp. Cent. Express, Inc., 368 F.3d 776, 783 (7th Cir. 2004)

(internal quotations and citations omitted). However,

the “mosaic” language, first used by this court in Troupe

v. May Department Stores Co., 20 F.3d 734, 737 (7th Cir.

1994), was not intended to “promulgate a new standard.” Sylvester v. SOS Children’s Villages Illinois, Inc.,

453 F.3d 900, 904 (7th Cir. 2006). As this court recently

stated, “we consistently have employed [the ‘mosaic’]

language to articulate the principle that, for a plaintiff

proceeding under the direct method to defeat summary

judgment using circumstantial evidence, ‘[a]ll that is

required is evidence from which a rational trier of fact

could reasonably infer that the defendant had [taken

an adverse employment action against] the plaintiff

because the latter was a member of a protected class.’ ”

Hanners v. Trent, No. 11-1754, 2012 WL 899062, at *7 (7th

Cir. Mar. 19, 2012) (quoting Troupe, 20 F.3d at 737).

Dass cites to no admissions of discrimination, and

relies, instead, on circumstantial evidence from which

she alleges the trier of fact could reasonably infer that

Jeske discriminated against Dass because of her national

origin.

The Seventh Circuit has recognized three different

types of circumstantial evidence of intentional discrimination: (1) suspicious timing, ambiguous oral or written
26 Nos. 10-3844 & 11-1104

This is the type of evidence the Seventh Circuit has referred 10

to as “a mosaic of evidence.” See Kennedy v. Schoenberg, Fisher

& Newman, Ltd., 140 F.3d 716, 724 (7th Cir. 1998).

This is often referred to as “comparative evidence.” Id. at 11

724-25.

This is often referred to as “pretext evidence.” Id. at 725. 12

statements, behavior toward or comments directed at

other employees in the protected group, and other bits

and pieces from which an inference of discriminatory

intent might be drawn; (2) evidence that similarly situ- 10

ated employees outside the protected class received

systematically better treatment; and (3) evidence that 11

the plaintiff was qualified for the job in question but

was passed over in favor of a person outside the protected class and that the employer’s stated reason was

a pretext for discrimination. Petts v. Rockledge Furniture 12

LLC, 534 F.3d 715, 720-21 (7th Cir. 2008) (citing Hossack

v. Floor Covering Assocs. of Joliet, Inc., 492 F.3d 853, 862

(7th Cir. 2007).

The circumstantial evidence a plaintiff presents

“must point directly to a discriminatory reason for the

employer’s action” (Adams v. Wal-Mart Stores, Inc., 324

F.3d 935, 939 (7th Cir. 2003)) and be “directly related

to the employment decision.” Venturelli v. ARC Cmty.

Service, Inc., 350 F.3d 592, 602 (7th Cir. 2003) (quotation

omitted).

Here, Dass’s “mosaic” includes four main pieces of

evidence: (1) Jeske allegedly told Dass that she should
Nos. 10-3844 & 11-1104 27

look for another job on the North Side where most of the

Indian kids go; (2) Jeske knew Dass’s grievance was

valid, yet vehemently opposed the grievance; (3) Jeske

refused to assign Dass to the open third-grade class

and instead assigned Dass to a seventh-grade class that

had proved itself to be a difficult class to discipline; and

(4) Jeske sent the assistant principal to observe and

report on Dass three times in one day shortly after

Dass started teaching the class.

The closest thing Dass has to an admission of discriminatory intent by defendants is Jeske’s alleged comment

that Dass should look for another job on the North Side

where most of the Indians go. “A remark can raise an

inference of discrimination when it ‘was (1) made by

the decision maker, (2) around the time of the decision,

and (3) in reference to the adverse employment action.’ ” Petts, 534 F.3d at 721 (quoting Hemsworth v.

Quotesmith.Com, Inc., 476 F.3d 487, 491 (7th Cir. 2007).

However, “[t]o be probative of discrimination, isolated comments must be contemporaneous with the

discharge or causally related to the discharge decision

making process.” Geier v. Medtronic, Inc., 99 F.3d 238,

242 (7th Cir. 1996). There is no set cut-off date “by

which comments must be made in order to support a

finding of discriminatory intent,” rather the determination must be made after considering all of the facts. Nagle

v. Vill. of Calumet Park, 554 F.3d 1106, 1115 (7th Cir. 2009).

In fact, the Seventh Circuit has rejected a bright line

test based on timing alone. See Paz v. Wauconda Healthcare

and Rehabilitation Centre, LLC, 464 F.3d 659, 666 (7th Cir.
28 Nos. 10-3844 & 11-1104

2006) (“It is worth mentioning that the district court

and Wauconda were under the mistaken belief that Paz

cannot proceed under the direct method because some

of Li’s comments were made two months prior to her

firing.”). Instead, how recent the comments were made

is only one of several factors that are considered when

determining whether there was sufficient circumstantial

evidence from which the trier of fact could infer discrimination. Id. (“Yet, how recent the comments were, how

extreme, and who made the remarks are pieces of

evidence that inform whether there was a ‘mosaic of

discrimination.’”).

Here, Jeske’s alleged comment about seeking a job on

the North Side was made in May 2006—about 10 months

before Jeske recommended that Dass be non-renewed

for the 2007-2008 school year. The comment was not

contemporaneous to or causally related to the discharge.

Moreover, no rational juror could find that the nonrenewal was because of Dass’s national origin, even if

the remark had been closer in time. There is no doubt

that Jeske wanted to get rid of Dass, but Dass’s evidence

does not create a genuine factual issue as to whether

Jeske was motivated by national origin discrimination

rather than Dass’s admitted inability to maintain discipline. The undisputed facts show that Dass was nonrenewed because she could not control her class, a class

within the range of grades she was certified to teach and

to which Jeske had the discretion to assign her. Clearly,

the alleged comment could not have been related to the

decision to non-renew Dass. This comment is there-
Nos. 10-3844 & 11-1104 29

We also note that Jeske also non-renewed four non-Indian 13

teachers. One of the teachers, Ms. Yost, taught Dass’s seventhgrade class up until Dass was reinstated in November 2006.

After Dass’s reinstatement and assignment to the seventh

grade, Jeske reassigned Ms. Yost to teach the same third-grade

class that Dass desired to be assigned to. Another teacher

Jeske non-renewed was Ms. Provost. Ms. Provost substituted

for Dass after Dass went on medical leave.

fore insufficient to point directly to a discriminatory

reason for Dass’s non-renewal.13

Dass’s other pieces of evidence in her “mosaic” likewise do not point directly to a discriminatory reason

for her non-renewal. Dass contends that in addition to

the alleged comment, Jeske’s opposition to Dass’s grievance, refusal to assign Dass to the third grade, and

decision to have Dass’s classroom observed shortly

after she started create a chain of evidence from which

the inference must be drawn that Dass was nonrenewed because of her national origin. However, the

circumstantial evidence must “point directly to a discriminatory reason for the employer’s action.” Adams v.

Wal-Mart Stores, Inc., 324 F.3d 935, 939 (7th Cir. 2003).

None of Dass’s proposed evidence points directly to

discrimination on the basis of national origin.
30 Nos. 10-3844 & 11-1104

CONCLUSION

For the foregoing reasons, we affirm the district court’s

judgment.

AFFIRMED

4-12-12