In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 01-3674

CORAL MATEU-ANDEREGG,

Plaintiff-Appellant,

v.

SCHOOL DISTRICT OF WHITEFISH BAY,

Defendant-Appellee.

____________

Appeal from the United States District Court

for the Eastern District of Wisconsin.

No. 00-CV-0837—Charles N. Clevert, Judge.

____________

ARGUED MAY 29, 2002—DECIDED AUGUST 26, 2002

____________

Before RIPPLE, DIANE P. WOOD, and EVANS, Circuit

Judges.

EVANS, Circuit Judge. Coral Mateu-Anderegg has

sued the Whitefish Bay School District under Title VII,

42 U.S.C. § 2000e et seq., claiming that she was not retained to teach in the district because of discrimination based on sex and national origin. The district court

granted the School District’s motion for summary judgment, dismissing the case. Mateu-Anderegg’s appeal of

that decision is now before us. We start with the facts.

Mateu-Anderegg was born in Spain in 1963; she came

to the United States in 1986, when she married an American. At that time she was 23 years old. She obtained cer-
2 No. 01-3674

tification from the Wisconsin Department of Public Instruction to teach Spanish in kindergarten through grade

12, and during the 1992 through 1994 school years she

taught full time in the Cedarburg, Wisconsin, school district.

In 1994 the Whitefish Bay School District hired her to

teach part time, which she continued to do through 1997.

During the latter year she also taught in the Shorewood

School District, where she was offered a full-time position for the next year. Despite the offer from Shorewood,

she remained at Whitefish Bay through the 1997-98

school year, teaching more classes, but still not doing so

full time. Since 1996 she has also been a lecturer at the

University of Wisconsin-Milwaukee.

Neil C. Codell became the principal of Whitefish Bay

High School in 1997. He told Mateu-Anderegg that he

would be interviewing her and other candidates for a fulltime position teaching Spanish for the school year beginning in the fall of 1998. During her interview with Codell,

he told her about his wife, who he said “is the best teacher in the world.” But he also said she made the “right

decision” to stay home with their children who are “the

number 1 priority,” and who were roughly the same age

as Mateu-Anderegg’s children. Codell recommended hiring Mateu-Anderegg for the 1998-99 school year. And as

it turned out, he did not interview anyone else for the

position.

Just before the beginning of the 1998-99 term, MateuAnderegg’s husband collapsed while he was jogging. He

was in a coma for 2 days and underwent open heart surgery. He was hospitalized for about 2 weeks. During his

illness, Mateu-Anderegg was given a leave of absence,

and so she did not begin teaching until several weeks

into the school year. When Mateu-Anderegg called Codell

to say she was ready to return to work, he advised her
No. 01-3674 3

to take more time off to care for her husband and to take

off as much time as she needed.

She returned to work, and sometime later, Codell told

her that the students were complaining about an examination she had given and that some students were asking to drop her class. Codell found fault with the way

the examination was written and said that it did not appear that she knew how to relate to the students. She

also claims that Codell blamed the problem on her failure

to take more time off. Codell instructed Mateu-Anderegg

to rewrite the exam. She continued to have problems

with students, particularly a rather rowdy class which

met the last period of the day. Mateu-Anderegg issued

disciplinary detentions to some of these students and they,

in turn, went to Codell and guidance counselors to complain. Mateu-Anderegg was very unhappy about the way

the counselors and Codell handled the situation, basically questioning her teaching ability.

Mateu-Anderegg’s job performance was formally evaluated four times throughout the 1998-99 school year by

Codell and also by a vice-principal. The evaluations reveal some concerns about Mateu-Anderegg’s teaching

style and indicate that she needed to provide better instructions to students and more explanations of classroom activities and assignments; they also indicate that

she needed to encourage more student involvement in

the classroom and to use varied strategies of instruction.

Codell and Mateu-Anderegg discussed several areas of

concern, one of which was referred to as her “mono dimensional” teaching style. Codell seemed to think that

she spent too much time in front of the class reading

from a textbook; he also thought she spoke in Spanish

too much and that the students could not understand

her. During this session, Mateu-Anderegg contends that

Codell expressed surprise that, after having lived in the
4 No. 01-3674

United States for a dozen years, she had not learned to

relate better to American students.

Students and parents complained to Codell about MateuAnderegg’s teaching, saying she had poor classroom management, difficulty communicating with students, an

inconsistent grading system, and that she imposed excessive discipline, even to students who were not otherwise

discipline problems. Students also professed not to know

the reasons for disciplinary detentions imposed on them.

Codell often met with Mateu-Anderegg to discuss the

complaints. During these meetings, Mateu-Anderegg believed that he was very angry with her and did not give her

a chance to explain her actions.

In December 1998 Codell informed Mateu-Anderegg

that he was considering not renewing her teaching contract. He testified in a deposition that he was concerned

about her classroom performance and her inability to relate to the students. In January 1999 Codell met with

Mateu-Anderegg and other members of the foreign language department. A plan was formulated to address

disciplinary matters in Mateu-Anderegg’s classes. Later

that day, Mateu-Anderegg met with Codell in his office, at

which time he recommended that she turn over her lastperiod class to another teacher, Jim Weissner. She says

that Codell stated that her class load was too much for

her, given everything that had happened to her husband,

and that she should give up the class to go home and

spend more time with her children.

In February 1999 Mateu-Anderegg received preliminary

notice that her contract would not be renewed. She requested a private conference with the school board, and

she asked for a written statement of the reasons for the

nonrenewal. Early in March she received a notice of a

hearing, but she withdrew her request that it be held,

stating that she did not agree with the reasons given for
No. 01-3674 5

nonrenewal of her contract. Of note is the fact that she

did not raise any concern about discrimination at this

time. By letter dated March 15, she was informed that

the reasons for nonrenewal were her ineffective and limited teaching style, inconsistent and inappropriate discipline of students, poor relationship with other staff members, and failure to fully comply with the expectations

and responsibilities of a teacher in the Whitefish Bay public schools. The board voted, unanimously, not to renew

her contract. That action left a vacancy in the foreign

language department. Based on Codell’s recommendation,

a woman named Julie Strassburger was hired to fill the

position.

As Mateu-Anderegg sees it, the real reason her contract

was not renewed was not deficiencies in her teaching,

but discrimination based on sex and national origin. As

evidence, she cites Codell’s remarks about caring for

her husband and children and a remark that more men

were needed in the foreign language department—remarks,

we find, which are susceptible of more than one interpretation. Regarding discrimination on the basis of national origin, she claims that in February 1998 Codell told

her that often native speakers did not make the best

language teachers. She claimed he also attributed her

difficulty with the students to the fact that she was from

another culture. He expressed surprise that after 12 years

she had not more thoroughly assimilated into American

culture. She said she believed that in some general way

Codell did not like her because she was from Spain.

Mateu-Anderegg had complained to other people about

Codell’s treatment of her. She complained to her union

representative, Mary Ott. But Ott does not remember

that Mateu-Anderegg complained that Codell was expressing sexist attitudes. She also complained to Director of

Personnel Gary Schumacher that the nonrenewal was

unfair and based on Codell’s opinion of her.
6 No. 01-3674

During the 1998-99 school year there were eleven fulltime, nontenured teachers at Whitefish Bay High School.

The contracts of Mateu-Anderegg and one other teacher

were not renewed. The other teacher was a male who

was born in the United States. He chose to resign rather

than to have his contract formally not renewed by the

school board.

Mateu-Anderegg contends that she has raised genuine issues of material fact regarding discrimination based

on gender and national origin by both the direct and

the indirect methods of proof and that summary judgment should not have been granted. The School District

contends that, for a number of reasons, it was entitled to

summary judgment.

We review a motion for summary judgment de novo.

Thiele v. Norfolk & Western Ry. Co., 68 F.3d 179 (7th Cir.

1995). Summary judgment is proper where the record

shows “there is no genuine issue as to any material fact

and that the moving party is entitled to a judgment as a

matter of law.” Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett,

477 U.S. 317 (1986). In determining whether a genuine

issue of material fact exists, we construe all facts in the

light most favorable to the nonmoving party and draw

all reasonable and justifiable inferences in favor of that

party. Anderson v. Liberty Lobby, Inc., 77 U.S. 242 (1986).

As is well-established, a plaintiff in a Title VII case

may proceed under either a direct or indirect method of

proof. Troupe v. May Dep’t Stores, 20 F.3d 734 (7th Cir.

1994). We will first turn to Mateu-Anderegg’s direct method of proof.

Her contention is that statements made by Principal

Codell reveal his discriminatory intent. Statements revealing discriminatory intent—if that is what Codell’s statements are—are one kind of “evidence that can be interpreted as an acknowledgment of discriminatory intent
No. 01-3674 7

by the defendant or its agents . . . .” Troupe, at 736. But

the School District contends, correctly, that such statements

are only relevant if they come from a decisionmaker,

someone involved in the adverse employment decision. On

less solid ground, the District then says that Codell was

not a decisionmaker, making an argument which seems

to tangle concepts from Title VII analysis with analysis

under 42 U.S.C. § 1983.

The District points to Wis. Stat. § 118.22, which sets

out procedures that the school board must follow in renewing or not renewing teacher contracts. Thus, the District

argues that the school board is the only entity which

could affect Mateu-Anderegg’s employment. In other words,

Codell is the only person alleged to have exhibited discriminatory intent, but he is not the person with final

authority under the statutes, and therefore there is no

direct proof of discrimination. The argument echoes issues

which arise under § 1983, when, say, a school board is

named as a defendant, but the only alleged constitutional violation involves the actions of a principal or teacher or other employee. Section 1983 requires that in such

a situation the actual perpetrator be named as the defendant. There is no respondeat superior liability under

§ 1983. See, e.g., Gernetzki v. Kenosha Unified Sch. Dist.

No. 1, 274 F.3d 464 (7th Cir. 2001), cert. denied, 122 S. Ct.

1606 (2002).

The same is not true under Title VII. The statute itself defines employer as “a person engaged in an industry

affecting commerce . . . and any agent of such a person . . . .”

42 U.S.C. § 2000e(b). Courts are to interpret Title VII

“based on agency principles.” Burlington Indus., Inc. v.

Ellerth, 524 U.S. 742, 754 (1998); Meritor Sav. Bank, FSB

v. Vinson, 477 U.S. 57 (1986). Furthermore, we are to rely

on the “general common law of agency, rather than on the

law of any particular State, to give meaning to these

terms.” Community for Creative Non-Violence v. Reid, 490
8 No. 01-3674

U.S. 730, 740 (1989). For purposes of sexual harassment

claims, the Court has said that a tangible employment

action requires “an official act of the enterprise, a company

act.” Burlington Indus., at 762. But it is clear that a

supervisor, whose actions must be approved somewhere up

the hierarchy, can be the agent of the employer. In Burlington Industries, the Court cited previous cases to that

effect: Shager v. Upjohn Co., 913 F.2d 398, 405 (7th Cir.

1990), in which the supervisor did not fire the plaintiff,

rather a committee did, but the employer was liable because the committee functioned as the supervisor’s “cat’spaw”; and Kitcher v. Rosa & Sullivan Appliance Ctr., Inc.,

957 F.2d 59, 62 (2d Cir. 1992), in which the court said

that from “the perspective of the employee, the supervisor and the employer merge into a single entity.”

To support its argument, the School District cites language from Chiaramonte v. Fashion Bed Group, Inc., 129

F.3d 391 (7th Cir. 1997), a Title VII case which says

that the statements revealing discriminatory intent must

come from the decisionmaker. That, of course, is true. If

a fellow teacher with no authority for hiring or firing

had made allegedly discriminatory statements, there

would be no direct evidence in this case. But Chiaramonte

cuts both ways. There, the statements of one John Elting,

the employee making the employment decision, were

evidence of discrimination. Statements of other employees were not, but that case is somewhat like MateuAnderegg’s case because Elting sent the list of persons

to be terminated upstairs to the personnel department.

There was no evidence that the personnel department

altered the list, and for that reason, Elting was considered

a decisionmaker despite the fact that he sent the list

“upstairs.” We have no evidence in this case that Codell’s

recommendations were not similarly followed by the

school board. In fact, what we do know is that his recommendation to hire Mateu-Anderegg and the decision to
No. 01-3674 9

not renew her contract were followed. The other teacher

recommended for nonrenewal resigned, perhaps because

he believed that Codell’s recommendations would be

followed. Depending on how a particular school district

operates, it seems likely that a principal or a superintendent can be a decisionmaker for purposes of Title VII.

We have no information which leads us to conclude otherwise in this case, and our conclusion is not novel.

In Clearwater v. Independent School District No. 166,

231 F.3d 1122 (8th Cir. 2000), a Native American woman alleged discrimination against a Minnesota school

district. As direct evidence, she cited remarks the superintendent made about pitching a tent and “scrub” Indian

ponies. The court found, in the context of the case, that

these were only “stray” remarks and therefore not direct evidence of discrimination. The superintendent, however, was considered a decisionmaker.

On this record, we cannot say, as a matter of law, that

Codell is not an agent of the employer, within the meaning of Title VII.

That being said, however, we find that there is no genuine issue of material fact that Codell’s statements fail

to provide direct evidence of discrimination. MateuAnderegg draws attention to remarks Codell made which

she contends show that he thought she should stay home

and take care of her children. To repeat his remarks, at

her interview with him for her full-time position, he said

his wife was the “best teacher in the world” but that

she had given up teaching to stay home with their children.

Again, after Mateu-Anderegg was having discipline problems with her last period class, Codell suggested that

she give up that class and go home to be with her children.

These remarks hardly show the kind of discriminatory

intent required. In fact, it was after the first remark

was made that Codell hired Mateu-Anderegg. The suggestion that she give up the 7th period class was made in
10 No. 01-3674

the context of trying to find a solution to a serious discipline problem. The remark that more men were needed

in the department is not overtly discriminatory, especially because she does not emphasize the gender breakdown

of the department and because Codell hired another woman to replace Mateu-Anderegg.

When evaluating direct evidence in support of a plaintiff’s position, we look at the context in which a statement

was made:

[A]mbiguous statements, suspicious timing, discrimination against other employees, and other pieces of

evidence nonconclusive in itself but together composing a convincing mosaic of discrimination against the

plaintiff.

Troupe, at 737. Here, rather than supporting MateuAnderegg’s claim, the mosaic detracts from it. What is

clear is that she was having trouble in the classroom. She

uses a statement from Judy Born, another teacher of 40

years teaching experience, to support her discrimination claim. Ms. Born says:

My perception of the “problem” with Coral which so

enraged the administrator is this. Coral, who expected all of her students to earn their grades by

participating fully in class activities and by exemplifying appropriate class behavior, angered some students to whom she gave detentions for non-compliance.

Instead of following the appropriate procedure,

these students went directly to the school principal. . . . Several other students, who have since expressed regret over their actions, “jumped on the

band wagon.” . . . With little opportunity to defend

herself, Coral was blamed and fired.

In fact, this statement would support a claim that MateuAnderegg was not given the help or support she might

have expected from the administration, but there is noth-
No. 01-3674 11

ing in the statement which lends support to any claim that

her sex or national origin had anything to do with her

situation.

Codell’s remark that Mateu-Anderegg should take all

the time she needed to care for her husband when he

was recuperating from heart surgery can as easily show

compassion which, hopefully, would be extended as well to

a man whose wife was recovering from major surgery. In

fact, the Family Medical Leave Act, 29 U.S.C. § 2601 et

seq., requires that employees be given time off in such

situations. It would be terribly unfair to consider Codell

biased for this remark.

As to her claim of discrimination based on national origin, Mateu-Anderegg cites statements Codell made to

the effect that he wondered why, after living in the United

States for 12 years and being married to an American,

she had not become more assimilated into the culture.

There is nothing in those remarks to show a bias against

persons of Spanish heritage.

Because Mateu-Anderegg cannot defeat summary judgment based on direct evidence, we will examine how

she fares under the familiar burden-shifting approach set

out in McDonnell Douglas v. Green, 411 U.S. 792 (1973).

To establish a prima facie case of discrimination, MateuAnderegg must show that she belongs to a protected

class, that she was performing up to the employer’s legitimate expectations, that she suffered an adverse employment action, and that the employer treated similarly

situated employees outside the protected class more favorably. Oates v. Discovery Zone, 116 F.3d 1161 (7th Cir.

1997). It is undisputed that she is a member of two protected classes and that she suffered an adverse employment action. But what also seems indisputably clear is

that she was not performing up to the employer’s legitimate expectations.
12 No. 01-3674

Consideration of the employer’s legitimate expectations

ties in with the next step in the burden-shifting analysis.

The employer must provide legitimate, nondiscriminatory reasons for the employment action and, if that

is done, the plaintiff must show that the reasons given

are pretextual. As is often the case, these items tend to

merge. See, e.g., Denisi v. Dominick’s Finer Foods, 99 F.3d

860 (7th Cir. 1996). The reasons given for the nonrenewal of Mateu-Anderegg’s contract indicate that she

was not meeting the employer’s legitimate expectations.

Those reasons were her ineffective and limited teaching

style, inconsistency and inappropriate discipline of students, poor relationship with other staff members, and

a failure to comply with the expectations and responsibilities of a teacher. The record in this case supports the

School District’s contention that Mateu-Anderegg was

not meeting its expectations. As the evaluations show,

there were concerns about her teaching style. There was

considerable discontent shown by both students and

parents, particularly about her inability to control her class

and her method of dealing with discipline problems. Ms.

Born’s statement indicates her belief that the problems

Mateu-Anderegg faced involved discipline and teaching

philosophy.

It may very well be that Codell did not provide MateuAnderegg with the level of support she needed to succeed. It seems clear they did not get along very well. It

may even be that Codell was not a particularly good

principal. Mateu-Anderegg points out that the District

must have known “more about Codell than it has thus

far acknowledged” because of his “serendipitous resignation shortly following Mateu-Anderegg’s non-renewal . . . .”

However, even were we to conclude that Codell did not

perform ideally in this situation, Mateu-Anderegg has not

raised a genuine issue of material fact as to whether

his failure had anything to do with bias against her be-
No. 01-3674 13

cause she is a woman or because she is of Spanish descent or, in McDonnell Douglas terms, that she was meeting her employer’s legitimate expectations, or that the

reasons given for nonrenewal were a pretext for discrimination based on sex or national origin. On this record, summary judgment for the School District was properly

granted. The judgment of the district court is AFFIRMED.

RIPPLE, Circuit Judge, concurring. I concur in the

judgment of the Court. I write separately because I take

a somewhat different view of the record than my colleagues. In my view, the record does not support the conclusion that Mr. Codell served as a decisionmaker in the

non-renewal of Ms. Mateu-Anderegg’s teaching contract.

As a general proposition, our case law establishes that

“[s]tatements by subordinates normally are not probative

of an intent to [discriminate] by the decisionmaker.”

Willis v. Marion County Auditor’s Office, 118 F.3d 542,

546 (7th Cir. 1997). Indeed, “only evidence on the attitudes

of the employees involved in the decision to fire the plaintiff[] is relevant.” Swanson v. Leggett & Platt, Inc., 154

F.3d 730, 733 (7th Cir. 1998). Simply put, when an individual plays no role in an adverse employment action, his

discriminatory animus generally proves irrelevant concerning the motivation behind an employer’s employment

decisions. Thus, the random racial slur or hostile comment of a co-worker that is unconnected to an employment decision proves insufficient to maintain a discrimination claim under Title VII. See Wallace v. SMC Pneumatics, Inc., 103 F.3d 1394, 1400 (7th Cir. 1997).
14 No. 01-3674

However, “if a manager with a [discriminatory] motive

is involved in the decision to terminate an employee, that

[discriminatory] motive, in some circumstances, may be

imputed to the company, even if the manager with a

[discriminatory] motive was not the ultimate decisionmaker.” Paluck v. Gooding Rubber Co., 221 F.3d 1003,

1010 (7th Cir. 2000). Accordingly, “there can be situations in which the forbidden motive of a [non-decisionmaking] employee can be imputed to the employer because, under the circumstances of the case, the employer

simply acted as the ‘cat’s paw’ of the [non-decisionmaker].”

Willis, 118 F.3d at 547.

Although this court has not identified the outer contours of this exception, see Willis, 118 F.3d at 547, certain

recurring principles can be gleaned from the case law. In

particular, we are concerned with the influence and input that the biased employee exerts over the decisionmaking process. Thus, “[s]ummary judgment is generally

improper where the plaintiff can show that an employee with discriminatory animus provided factual information or other input that may have affected the adverse

employment action.” Dey v. Colt Constr. & Dev. Co., 28 F.3d

1446, 1459 (7th Cir. 1994). For instance, when a biased

employee makes a discriminatory statement in the context of a plaintiff’s performance review—an evaluation

that may be passed along to the decisionmaker—the subordinate’s attitudes become relevant to the discrimination

calculus. See, e.g., Eiland v. Trinity Hosp., 150 F.3d 747,

751 (7th Cir. 1998). More to the point, if the plaintiff

proffers evidence demonstrating that the biased nondecisionmaker concealed “relevant information from the

decisionmaking employee or feed[s] false information to

him,” then the animus of the non-decisionmaker becomes relevant because he “is able to influence the [employment decision.]” Wallace, 103 F.3d at 1400. Essentially,

then, “these cases prevent an employer from escaping lia-
No. 01-3674 15

bility by setting up many layers of pro forma review, thus

making the operative decision that of a subordinate with

an illicit motive.” Willis, 118 F.3d at 547. However, “it

is clear that, when the causal relationship between the

[non-decisionmaker’s] illicit motive and the employer’s

ultimate decision is broken, and the ultimate decision is

clearly made on an independent and a legally permissible

basis, the bias of the [non-decisionmaker] is not relevant.” Id. For instance, if objective information from

sources other than the biased employee drive the adverse

employment action, the subordinate’s illicit motives are

no longer relevant to the inquiry. See id.

In this case, I do not believe that it is appropriate to

characterize the School Board’s actions as merely rubberstamping the contract-renewal recommendations of Mr.

Codell. Wisconsin law assigns authority over renewal

decisions to the local school boards. See Wis. Stat. § 118.22.

On this record, there is no indication that this School

Board delegated its responsibility to Mr. Codell or otherwise failed to conduct an independent review of his renewal recommendations. Indeed, in February 1999, the

Board sent Ms. Mateu-Anderegg a letter that stated in

pertinent part:

[Y]ou are hereby put on notice that the School Board

of the School District of Whitefish Bay is considering the recommendation of the administration that

your employment contract not be renewed. . . . [Y]ou

have the right to file a request with the Board . . . for

a private or public conference with the Board relative

to the subject of non-renewal of your contract. . . .

You are further advised that if you desire a conference,

you will be provided, prior thereto, with written reasons as to why the Board is considering your nonrenewal. At such conference, you have the right . . . to

call witnesses and submit evidence relevant to the

subject of the non-renewal of your contract. You also
16 No. 01-3674

will have the right to question witnesses and rebut

any testimony which might be unfavorable to you.

R.40, Ex.12. Far from functioning as a pro forma review panel, the School Board planned to conduct an independent inquiry into the allegations underpinning Mr.

Codell’s non-renewal recommendation. Simply put, but

for her declining to participate in this hearing, Ms. MateuAnderegg would have been given an opportunity to present her side of the dispute to the School Board. Under

these circumstances, I would hold that the record establishes that the School Board was the final decisionmaker,

and there is no evidence that it made its decision on

anything other than the stated job-performance related

reasons. We have never established a presumption that

school boards do not make their decisions independently

of subordinate officials, and the record in this case hardly affords a basis for doing so today.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-97-C-006—8-26-02