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UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF INDIANA 

HAMMOND DIVISION AT LAFAYETTE 

MICHAEL HALLIWELL, 

 Plaintiff, 

 v. 

NORTH WHITE SCHOOL 

CORPORATION, 

 Defendant. 

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Case No. 4:13-CV-084 JD 

OPINION AND ORDER 

 In this case Plaintiff Michael Halliwell (Halliwell) claims that Defendant North White 

School Corporation (the School) terminated him on the basis of his age in violation of the Age 

Discrimination in Employment Act (ADEA). Discovery has now closed in this matter and the 

School has filed a motion for summary judgment [DE 21] which is ripe for review. 

STANDARD OF REVIEW

 Summary judgment is appropriate when 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). A genuine 

dispute as to any material fact exists if “the evidence is such that a reasonable jury could return a 

verdict for the nonmoving party.” Cung Hnin v. TOA (USA), LLC, 751 F.3d 499, 504 (7th Cir. 

2014) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). To survive a motion 

for summary judgment, the party with the burden of proof “must affirmatively demonstrate, by 

specific factual allegations, that there is a genuine issue of material fact that requires trial.” 

Hemsworth v. Quotesmith.com, Inc., 476 F.3d 487, 490 (7th Cir. 2007). 
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FACTS

For the purposes of this motion for summary judgment, the Court will construe the 

evidence in the light most favorable to Halliwell. See Anderson, 477 U.S. at 255 (at the 

summary judgment stage the “evidence of the non-movant is to be believed, and all justifiable 

inferences are to be drawn in his favor.”). 

 Michael Halliwell began teaching high school English at North White School 

Corporation in 2002. Several years later, in 2011, the Indiana General Assembly passed 

legislation that required the School to alter how it evaluated teachers. While teachers had been 

evaluated based on procedures and standards negotiated between the School and the teachers 

union, the legislative reforms required the School to independently devise an evaluation system 

that satisfied certain statutory criteria. The School developed such a system patterned off of an 

Indiana Department of Education exemplar. It required at least three classroom evaluations of 

each teacher per school year. The School began implementing it in 2011-2012 and it was fully 

implemented by 2012-2013. 

 Around this time—from 2010 continuing through 2014—the School offered older 

teachers an early retirement buyout consistent with the agreement of the teachers union. To be 

eligible for the buyout, a teacher had to have at least five years of experience at the School and 

be at least fifty years old. Halliwell was offered such a buyout on February 13, 2012, but elected 

not to accept it. In total, twenty-nine teachers were eligible for the 2012 buyout, nine of whom 

accepted it. 

 Halliwell was evaluated under the transition to the new evaluation system on February 

27, 2012. While the School’s principal typically conducted teacher evaluations, Curriculum 

Director Michelle Hay evaluated Halliwell. She also evaluated five other teachers, each over 
3

forty years old. Hay’s evaluation concluded that Halliwell needed improvement, though also 

noted several areas where his performance was satisfactory. 

 In June 2012, Roderick McKee, at that time the School’s principal, made a preliminary 

decision to terminate Halliwell, subject to confirmation by Nicholas Eccles, the School’s 

superintendent, and the Board of School Trustees of the North White School Corporation (the 

School Board). McKee based this decision on numerous asserted deficiencies in Halliwell’s 

performance, including unprofessional behavior and a failure to rectify problems identified in the 

February 2012 evaluation (such as not teaching and assessing in conformity with state 

standards). Halliwell then met with Eccles who decided against terminating him. Eccles 

believed that Halliwell and McKee had a personality conflict, which would become unimportant 

since McKee planned to retire. 

 A new principal, Curtis Craig, then started the following school year (2012-2013). He 

evaluated Halliwell several times throughout that year, noting both strengths and deficiencies in 

his performance. In April 2013, Craig placed Halliwell on a teacher improvement plan. That 

plan required Halliwell, among other things, to more comprehensively incorporate state 

standards into his teaching. In May 2013, Craig found that Halliwell had failed to comply with a 

variety of the plan’s provisions and made a preliminary decision to terminate him for 

insubordination, neglect of duty and other good or just cause under Indiana Code § 20-28-7.5-1. 

Halliwell then met with Superintendent Eccles, who also determined there was sufficient 

evidence to terminate him. The School Board held a hearing on June 28, 2013 where Craig, 

Eccles and Hay presented evidence in support of Halliwell’s termination. Two union 

representatives represented Halliwell and presented evidence in opposition. The School Board 

voted 4-1 to terminate Halliwell for insubordination, neglect of duty and other good and just 
4

cause. 

 Halliwell then filed this lawsuit. He contends that he was a victim of a scheme by the 

School administration to remove older teachers from the School. The School responds that 

Halliwell was fired for poor performance, not out of any discriminatory animus. 

ANALYSIS 

1. Motion to Strike 

 Prior to addressing the School’s motion for summary judgment, it is necessary to resolve 

its motion to strike [DE 31]. That motion presents a “threshold question because a court may 

consider only admissible evidence in assessing a motion for summary judgment.” Gunville v. 

Walker, 583 F.3d 979, 985 (7th Cir. 2009). The decision to grant or deny a motion to strike is 

within the discretion of the trial court. Stinnett v. Iron Works Gym/Executive Health Spa, Inc., 

301 F.3d 610, 613 (7th Cir. 2002). The School argues that parts of Halliwell’s affidavit and 

some of the exhibits that accompany it are inadmissible. 

 First, the School challenges Halliwell’s 2007 and 2010 performance evaluations [DE 29-

6 at 3-10] and the second and third paragraphs of his affidavit [DE 29-6 at 1] which refer to 

them. It argues that these evaluations preceded Halliwell’s termination by two years and thus are 

not relevant to Halliwell’s performance at the time he was terminated. Halliwell responds that 

they show that he performed well until he refused the School’s retirement buyout offer, at which 

point the School abruptly altered its characterization of his performance. So, he says, they are 

relevant to the pretext inquiry. 

 The Court agrees. Evidence is relevant if “it has any tendency to make a fact more or 

less probable than it would be without the evidence.” Fed. R. Evid. 401 (emphasis added). As 
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the Seventh Circuit has indicated, a “party faces a significant obstacle in arguing that evidence 

should be barred because it is not relevant, given that the Supreme Court has stated that there is a 

‘low threshold’ for establishing that evidence is relevant.” United States v. Boros, 668 F.3d 901, 

907 (7th Cir. 2012) (quoting Tennard v. Dretke, 542 U.S. 274, 285 (2004)). 

 In this case, there is a dispute as to the honesty of the School’s proffered justification for 

terminating Halliwell. One way for Halliwell to demonstrate pretext would be to show that the 

School abruptly changed its characterization of his performance. See Widmar v. Sun Chem. 

Corp., 772 F.3d 457, 465 (7th Cir. 2014) (noting that inconsistencies or contradictions in an 

employer’s rationale can demonstrate pretext); Testerman v. EDS Tech. Products Corp., 98 F.3d 

297, 305 (7th Cir. 1996) (discussing cases where an unprecedentedly unfavorable posttermination evaluation supported a finding of pretext). Halliwell’s positive past performance 

evaluations could help show that (though as discussed below, their probative value is minimal 

and insufficient for Halliwell to survive summary judgment), which is all that is necessary to 

meet the minimal hurdle imposed by Rule 402. Accordingly, the Court denies the School’s 

motion to strike as to Halliwell’s 2007 and 2010 performance evaluations [DE 29-6 at 3-10] and 

the second and third paragraphs of his affidavit [DE 29-6 at 1]. 

 Next, the School seeks to strike a student gradebook entry from fall 2013 [DE 29-6 at 11-

15] and the fourth paragraph of Halliwell’s affidavit [DE 29-6 at 1] which references it. The 

School contends that the gradebook is irrelevant since it postdates Halliwell’s termination. 

Halliwell responds that it shows how the School subjected him to harsher standards than other 

teachers. He notes that the gradebook does not contain references to state standards, which he 

believes demonstrates that the School did not require teachers other than him to provide state 

standards with student grades. 
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 The Court finds that the gradebook is not relevant. Information from fall 2013 does not 

shed any light on the School’s expectations of Halliwell “at the time of [his] termination” several 

months earlier. Peele v. Country Mut. Ins. Co., 288 F.3d 319, 329 (7th Cir. 2002). Moreover, 

even if the gradebook were from a time immediately before Halliwell’s termination, it is a 

student grade printout. Halliwell has provided no evidence that such a document would typically 

contain the grade information the School requires teachers to provide. As such, the student 

gradebook entry is not even minimally probative of any fact of consequence in this action. The 

Court thus strikes it [DE 29-6 at 11-15] and the corresponding fourth paragraph of Halliwell’s 

affidavit [DE 29-6 at 1] pursuant to Rule 402. Given this conclusion, the Court need not resolve 

the Defendant’s inadmissibility arguments under Rules 801, 802, 601 and 901. 

 Finally, the School seeks to strike the seventh paragraph of Halliwell’s affidavit [DE 29-6 

at 2]. Therein, Halliwell asserts that he spoke with several teachers at the School who informed 

him that the School did not require them to incorporate state standard assessments in their grade 

submissions. The School contends that this is hearsay. Halliwell responds that these statements 

were made by employees of the School within the scope of their employment and are thus 

admissible under Rule 801(d)(2)(D). 

 The Court agrees with Halliwell. Out of court statements are not hearsay if they are 

offered against an opposing party and were made by the party’s agent or employee on a matter 

within the scope of that relationship and while it existed. Fed. Rule Evid. 801(d)(2)(D). Those 

requirements are satisfied here. In his affidavit, Halliwell says he spoke with his fellow teachers, 

which would have been School employees. Further, he said that he spoke with them about the 

School’s expectations of them. Employees’ descriptions of their work duties fall squarely within 

the scope of their employment. Aliotta v. Nat’l R.R. Passenger Corp., 315 F.3d 756, 762 (7th 
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Cir. 2003) (“[t]he only requirement [of 801(d)(2)(D)] is that the subject matter of the admission 

match the subject matter of the employee’s job description”).1

 As such, the Court finds that 

paragraph seven of Halliwell’s affidavit [DE 29-6 at 2] is non-hearsay per 801(d)(2)(D) and 

denies the corresponding section of the School’s motion to strike. 

 In sum, the Court grants the Defendant’s motion to strike with regard to the fourth 

paragraph of Halliwell’s affidavit [DE 29-6 at 1] and the student gradebook [DE 29-6 at 11-15]. 

The Court denies the Defendant’s motion to strike with regard to the second, third and seventh 

paragraphs of Halliwell’s affidavit [DE 29-6 at 1-2] and his 2007 and 2010 performance 

evaluations [DE 29-6 at 3-10]. 

2. ADEA Termination Claim 

 Halliwell claims that the School terminated him in violation of the Age Discrimination in 

Employment Act (ADEA). The ADEA makes it illegal, among other things, for an employer to 

discharge an individual over 40 years old on account of his or her age. Van Antwerp v. City of 

Peoria, Ill., 627 F.3d 295, 297 (7th Cir. 2010). To establish a violation of the ADEA, an 

employee must show that age “played a role in the employer’s decision-making process and had 

a determinative influence on the outcome.” Id. An employee can do this via a direct or indirect 

method of proof. Id. In this case, Halliwell is proceeding via an indirect method of proof. That 

requires him to establish that: (1) he was in the protected group of persons forty and older, (2) he 

was meeting his employer’s legitimate expectations, (3) he suffered an adverse employment 

action and (4) similarly situated employees outside of the protected class were treated more 

                                                            

1

 In employment discrimination cases, the Seventh Circuit has held that a declarant must be involved in the decisionmaking process affecting the employment action at issue for his statements to be made within the scope of 

employment. See, e.g., Williams v. Pharmacia, Inc., 137 F.3d 944, 950-51 (7th Cir. 1998). But that restriction is 

only apposite where “the admission deals with hiring/firing/promoting/demoting-type decisions.” Aliotta, 315 F.3d 

at 762. It does not apply here, where Halliwell seeks only to introduce his co-teachers’ assessments of their duties. 
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favorably. Widmar, 772 F.3d at 463. If Halliwell succeeds in establishing this prima facie case, 

the burden shifts to the School to provide a legitimate, nondiscriminatory reason for terminating 

him. Id. Halliwell can then avoid summary judgment with evidence that the School’s stated 

reason was pretextual. Id. 

 The parties do not dispute that Halliwell is a member of a protected class (he was 54) and 

that he was terminated. The only issues presented by this motion for summary judgment are 

whether Halliwell was performing well enough to meet the School’s legitimate expectations, 

whether substantially younger employees were treated more favorably than he was and whether 

the School’s justification for terminating him was pretextual. 

A. Legitimate Employment Expectations

 To prevail in an ADEA claim, a Plaintiff must present evidence that he was meeting his 

employer’s legitimate employment expectations. Ho v. Abbott Labs., Inc., 618 F. App’x 852, 

855 (7th Cir. 2015). The School first asserts that Halliwell was not meeting its legitimate 

expectations because he failed to adequately teach state standards. It provides substantial 

evidence to this effect. Craig testified that, based on his classroom observations, it did not seem 

to him that Halliwell was adequately teaching objectives set forth in the state standards. [DE 27-

15 at 8]. Craig also sent Halliwell letters outlining in detail how he believed Halliwell had not 

met the requirements of the Teacher Improvement Plan, largely because Halliwell had not 

adequately planned, taught or evaluated students in line with state standards. [DE 27-19]; [DE 

27-20]. Ultimately, Craig recommended that Halliwell be terminated because, among other 

things, there was “little evidence that Mr. Halliwell [had] taught the Indiana Common Core 

standards.” [DE 27-21 at 5]. After deciding to terminate Halliwell, the School Board found that 

Halliwell’s “failure to incorporate state standards in his lessons and assessments” amounted to 
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“neglect of duty” and that Halliwell had demonstrated insubordination in his “open resistance to 

efforts to persuade him to incorporate state standards into his teaching (planning, curriculum, and 

grade books)[.]” [DE 27-4 at 7]. 

 But Halliwell provides evidence to the contrary. First, there are the School’s Indiana End 

of Course Assessment (ECA) test results.2

 These indicate that 47.10% of sophomores passed the 

English 10 ECA in 2010-2011, before Halliwell began teaching it. After Halliwell began 

teaching it in 2011-2012, the pass rate jumped markedly to 71.00%. It then remained relatively 

high at 65.60% in 2012-2013. [DE 29-4]. Second, Principal Craig testified that he knew 

Halliwell had a dry erase board in his classroom on which he listed his classes and the state 

standard numbers that corresponded to those classes. [DE 27-15 at 11]. Third, Principal Craig 

testified that he observed a class in which Halliwell taught a poem which Craig agreed could 

conform with state standards. [DE 27-15 at 14]. Fourth, Ms. Hay testified that she observed 

Halliwell teaching a lesson that aligned with state standards. [DE 27-1 at 8]. 

 The School disagrees that the evidence presented by Halliwell indicates that he 

adequately incorporated state standards into his teaching. It notes that high ECA scores alone do 

not indicate that a teacher is adequately teaching state standards. Nor does listing state standard 

numbers on a dry erase board show that Halliwell actually taught them. And while Halliwell 

was teaching a poem which could have been compatible with a state standards lesson, that does 

not mean Craig was actually teaching one. 

 All of these are plausible arguments. Along with the School’s evidence, they might well 

lead a reasonable juror to conclude that Halliwell was not effectively teaching state standards. 

                                                            

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 The School downplays the import of this jump in test scores and notes that in 2011-2012, when scores were the 

highest, another teacher assisted in Halliwell’s classroom. Nevertheless, a reasonable juror could conclude that 

Halliwell contributed significantly to those scores, particularly because passage rates remained relatively consistent 

when Halliwell taught alone in 2012-2013. 
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At this stage, however, Halliwell “bears a burden only of producing some evidence” to support 

his position. Johnson v. Zema Sys. Corp., 170 F.3d 734, 743 (7th Cir. 1999).3

 In coming 

forward with (among other things) evidence that his students received high scores on state 

standardized tests, he has done that. Accordingly, there is a fact issue as to whether his 

instruction of state standards was adequate. 

 But while the evidence could support a finding that Halliwell met the School’s legitimate 

expectations with regard to teaching ability, the same is not true with regard to his conduct. That 

is important, because the analysis of an employer’s legitimate expectations does not merely 

consider a plaintiff's actual job performance; it also extends to factors such as insubordination 

and workplace camaraderie. Zayas v. Rockford Mem’l Hosp., 740 F.3d 1154, 1158 (7th Cir. 

2014). “The Seventh Circuit has affirmed numerous times that a demonstrated history of 

disrespectful and abrasive communications generally defeats an employee’s efforts to 

demonstrate that [he] was meeting [his] employer's legitimate expectations.” Carragher v. 

Indiana Toll Rd. Concession Co., 936 F. Supp. 2d 981, 989 (N.D. Ind. 2013) (citing Fane v. 

Locke Reynolds, LLP, 480 F.3d 534 (7th Cir. 2007); Herron v. DaimlerChrysler Corp., 388 F.3d 

293, 300 (7th Cir. 2004)); see also Hill v. Johnson, No. 11 C 2144, 2012 WL 4483442, at *7 

(N.D. Ill. Sept. 27, 2012) (an “employee who is recognized for performing some aspects of his 

job well but is confrontational and disrespectful toward others is not meeting his employer’s 

legitimate expectations.”). Further, an employee does not meet his employer’s expectations 

where he fails to comply with his employer’s reasonable directives. Kephart v. Inst. of Gas 

                                                            

3

 The Court will draw upon precedent from other antidiscrimination statutes to guide its interpretation of the ADEA, 

since the ADEA, Title VII and § 1981 share “essentially the same analytical framework.” Cerutti v. BASF Corp., 

349 F.3d 1055, 1061 n. 4 (7th Cir. 2003). 
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Tech., 630 F.2d 1217, 1223 (7th Cir. 1980); see also Widmar, 772 F.3d at 466 (“An employer 

can micro-manage and require as much petty communication as it wishes. And it may 

legitimately discipline an employee who fails to conform to the requirement so long as the 

discipline is not used as pretext for discrimination.”)

 The School presents substantial, uncontested evidence that Halliwell was not meeting its 

legitimate expectations with regard to his behavior.4 In a June 2012 letter recommending 

Halliwell’s termination, McKee noted (among other things) that Halliwell (1) made negative 

comments in the teacher lunch room, which caused several staff members to avoid eating there; 

(2) was “often short and sarcastic to students and colleagues” and (3) “[f]ailed to stop 

interrupting during a parent conference” even after the administration told him to stop. [DE 27-7 

at 1-2]. 

 Moreover, the evidence demonstrates that these behavioral issues continued unabated 

until Halliwell’s termination. For example, in November 2012, Halliwell arrived at a lesson 

planning meeting with Craig without bringing class planning materials that Craig had requested. 

Halliwell informed Craig that he did not bring those materials and that he did not believe in 

                                                            

4

 Halliwell makes a cursory argument that the School could not terminate him for being “openly resistant and 

defiant” to state standards and “getting other teachers involved in resisting the state standards” consistent with the 

First Amendment. [DE 28 at 21]. But he does not bring a First Amendment retaliation claim. Moreover, he fails to 

explain how his statements were not made pursuant to his official duties, which is a necessary prerequisite to First 

Amendment protection. Kubiak v. City of Chicago, 810 F.3d 476, 481 (7th Cir. 2016); see also Diadenko v. Folino, 

890 F. Supp. 2d 975, 987 (N.D. Ill. 2012) aff'd, 741 F.3d 751 (7th Cir. 2013) (finding that a teacher spoke as an 

employee, not a citizen, where he made a statement at a staff meeting that the school was using outdated 

standardized tests); Hesse v. Bd. of Educ. of Twp. High Sch. Dist. No. 211, Cook Cty., Ill., 848 F.2d 748, 752 (7th 

Cir. 1988) (“[The Plaintiff] was not attempting to speak out as a citizen concerned with the problems facing the 

school district, but was instead attempting to articulate his own private disagreement with policies and procedures 

which he had either failed to apply or refused to follow.”). 

 
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them. He further explained that he thought his current teaching style was effective. [DE 27-22 

at 2]. In April 2013, Halliwell told Craig “[o]ne of the items listed on your improvement plan 

was supposed to start today. I am sorry but I will not be implementing that until I have discussed 

it with [union representative] Terri [sic] Brown and checked into the validity of that 

improvement suggestion and your entire evaluation.” [DE 27-22 at 3]. Also in April 2013, 

Halliwell responded “why should I?” to directions he received from Craig. [DE 27-4 at 6]. 

Finally, in May 2013, Halliwell indicated that “defensiveness and resistance to change” correctly 

reflected his position regarding the administration’s request that he more comprehensively 

incorporate state standards into his teaching. [DE 27-22 at 4].5

 

 Halliwell does not specifically contest this evidence. He states in an affidavit that he 

“complied with state law and the reasonable rules for the governance of the school” and “was not 

openly resistant or defiant to any member of the School administration.” [DE 29-6 at 2]. Such 

conclusory statements, however, are insufficient to create a fact issue. See Mills v. First Fed. 

Sav. & Loan Ass’n of Belvidere, 83 F.3d 833, 843 (7th Cir. 1996) (“conclusory statements in the 

plaintiff’s affidavit or deposition do not create an issue of fact”) (alterations omitted); Widmar, 

772 F.3d at 460 n. 1 (noting that a party’s own affidavit can defeat summary judgment if it meets 

usual evidentiary requirements including that it set forth specific facts showing that there is a 

genuine issue for trial). 

 Halliwell also points to indications that he performed well, such as a February 2013 

evaluation, which found him to provide effective instruction and leadership in the classroom, 

                                                            

5

 The School also says that Halliwell had a “low opinion” of the School’s students. That appears to be drawn from 

Halliwell’s observation in a memorandum to Craig that many of his students “struggle to read at grade level.” [DE 

27-21 at 3]. But, as Halliwell testified, that remark could reasonably be understood to be a reference to the 

challenges posed by the School’s indigent and English-as-a-second-language populations rather than an 

inappropriate slight. [DE 27-2 at 22-23]. Additionally, the School claims Halliwell engaged in efforts to get other 

teachers involved in resisting state standards, though provides no information as to how he purportedly did so. [DE 

26 at 8]. 
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although it does not mention state standards [DE 27-11], and an April 2013 evaluation that, taken 

in a light most favorable to Halliwell, could indicate that he was teaching satisfactorily. [DE 27-

13]. He also notes that his Academic Super Bowl team won state around late 2012 and that his 

Battle of the Books team performed well. [DE 27-2 at 21]. 

 But this is simply evidence that Halliwell taught well, not that he was meeting the 

School’s expectations regarding his comportment. See Fane, 480 F.3d at 540 (“The fact that 

Fane completed her assignments has no bearing on whether she met [her employer’s] 

expectations regarding employee conduct.”). Halliwell cannot be said to have lived up to those 

expectations given his strident communications with Craig, refusal to comply with 

administration directives and agreement that he was defensive and resistant to change. See id.

(holding that an employee failed to satisfy her employer’s legitimate expectations where she 

inappropriately addressed her supervisor and communicated abrasively with clients and 

colleagues). Accordingly, Halliwell has not presented sufficient evidence to permit a finding 

that he met his employer’s legitimate employment expectations.6

B. Legitimate, Nondiscriminatory Reason 

 Halliwell’s failure to raise a fact issue as to the second element of his prima facie case 

precludes his recovery. But even if Halliwell had met his burden of proof and established a 

prima facie case of discrimination, his claim would not survive the next part of the analysis. If 

he had established a prima facie case, the burden would shift back to the School to articulate a 

                                                            

6

 Halliwell’s failure to demonstrate a genuine issue of material fact as to the second element of his claim also 

precludes him from satisfying the fourth element of his claim. He contends that he need only show that “was 

replaced by someone substantially younger.” Perry v. Bath & Body Works, LLC, 993 F. Supp. 2d 883, 916 (N.D. 

Ind. 2014). But that standard is not applicable here. The Seventh Circuit has explained that an employee only has to 

show that he was replaced by someone substantially younger if he can show that he was meeting his employer’s 

legitimate employment expectations. Naik v. Boehringer Ingelheim Pharm., Inc., 627 F.3d 596, 600 (7th Cir. 2010). 

Because Halliwell has not made that showing, he must present evidence that similarly situated, substantially younger 

employees were treated more favorably than he was. See id. He has presented no evidence to that effect. 
14

legitimate, nondiscriminatory reason for his termination. McDonnell Douglas Corp. v. Green, 

411 U.S. 792, 802 (1973). This is merely a burden of production, which “is not difficult to 

satisfy[.]” Mills, 83 F.3d at 845. As discussed in detail above, the School does articulate 

legitimate and nondiscriminatory reasons for termination. See [DE 27-4 at 7] (noting as reasons 

for termination Halliwell’s purported failure to adequately incorporate state standards into his 

teaching, willful refusal to do so and openly resistant and defiant attitude). 

C. Pretext

 That switches the onus to Halliwell to prove that the School’s justification for firing him 

was a lie. “The focus of a pretext inquiry is whether the employer’s stated reason was honest, 

not whether it was accurate, wise, or well-considered.” Stewart v. Henderson, 207 F.3d 374, 378 

(7th Cir. 2000). 

 In an effort to establish the insincerity of the School’s rationale for terminating him, 

Halliwell points to the retirement buyout program that the School offered teachers in February 

2012. Around that time, Hay—who did not typically conduct performance evaluations—

observed six teachers. Five of them were eligible for the buyout and all were above forty. So, 

Halliwell says, the School made the buyout available and then used Hay to pressure older 

teachers into taking it. 

 But that is not a rational inference from the evidence presented. It is well-established that 

retirement buyout programs are not in and of themselves suspicious or discriminatory. Cerutti, 

349 F.3d at 1062. On the contrary, they typically represent a benefit to their recipients. Id. So, 

Halliwell is left to establish pretext by pointing to Hay’s evaluations of protected class members, 

which he cannot do. Hay testified that McKee was having difficulty evaluating all of the 

School’s teachers by himself, and so McKee and Eccles asked Hay to assist. [DE 27-1 at 5-6]. 
15

Hay then evaluated six individuals, all over age forty (as over 75% of the School’s high school 

teachers were). Of the teachers she evaluated other than Halliwell, she found three to be 

performing satisfactorily and two in need of improvement. [DE 27-1 at 11]. That is simply not 

indicative of a concerted campaign to drive older teachers from the School. See Faas v. Sears, 

Roebuck & Co., 532 F.3d 633, 643 (7th Cir. 2008) (“A pattern where the protected-class 

members sometimes do better and sometimes do worse than their comparators is not evidence of 

age discrimination.”) (internal quotation marks omitted). 

 Halliwell also contends that the School referred to him with discriminatory “code words.” 

These include references to Halliwell’s use of a dot-matrix printer (to describe old lesson plans), 

his “lack of effort to keep current,” his “defensiveness and resistance to change” and his 

engaging in a “traditional form of instructional delivery” as a “disseminator of knowledge.” [DE 

28 at 10, 13]. These phrases are not discriminatory, however, because they criticize Halliwell’s 

performance rather than his age. Blackwell v. Cole Taylor Bank, 152 F.3d 666, 672 (7th Cir. 

1998) (“To evaluate an individual worker or a group of workers as lacking energy, initiative, 

commitment, imagination, flexibility, or other desired characteristics is not to indulge in age 

stereotypes, and is indeed the kind of evaluative approach that the antidiscrimination laws seek 

to encourage.”). If anything it is prejudicial to assume that descriptors such as “lack of effort to 

keep current” categorically apply to the older population. See id. at 671. 

 Next, Halliwell says that, unlike other teachers, the School required him to provide 

references to state standards with his grades. In support of this assertion, he testifies that he 

“discussed with several other teachers whether the North White School Corp. administration was 

forcing them to reflect assessment of state standards in their grades, and every teacher to whom 

[he] spoke indicated that no such requirement was forced upon them.” [DE 29-6 at 2]. Evidence 
16

that an employer applied its expectations in a disparate manner can indeed support a finding of 

pretext. Peele, 288 F.3d at 329. But the information Halliwell provides is far too vague to be 

significantly probative. He does not indicate which teachers he spoke to or how they were 

similarly situated to him. Nor can the Court fill in those gaps with speculation or conjecture. 

Fitzgerald v. Santoro, 707 F.3d 725, 730 (7th Cir. 2013). Without that information, there is no 

reason to conclude that the School’s expectations of other teachers are in any way relevant to its 

expectations of Halliwell and there is no basis for a finding of pretext. See Coleman v. Donahoe, 

667 F.3d 835, 846 (7th Cir. 2012) (noting that it is necessary to eliminate variables such as 

differing roles, performance histories and decision-making personnel to draw an inference of 

discrimination from the differential treatment of employees). 

 Halliwell further points to his 2007 and 2010 performance evaluations. He says that 

these demonstrate that he was favorably reviewed before the School’s retirement buyout, at 

which point “suddenly [he] was less favorably reviewed.” [DE 32 at 1]. An abrupt about-face of 

an employer’s evaluation of an employee could be evidence of pretext. See Widmar, 772 F.3d at 

465. But the performance evaluations at issue here predated the School’s buyout offer by at least 

two years. As such, they cannot demonstrate the sort of sudden change in position that might be 

indicative of duplicity. Moreover, the School’s adoption of a modified teacher evaluation system 

in 2011—which Halliwell testified changed performance expectations of teachers, [DE 27-2 at 

8]—further undercuts any comparative value of his past evaluations.7

 See Peele, 288 F.3d at 329

(noting the minimal relevance of a plaintiff’s performance evaluations from a position she had 

                                                            

7

 Halliwell asserts that “Defendant’s Curriculum Director Michelle Hay stated that the RISE model is an evaluation 

model, and did not identify it as a changed expectation.” [DE 32 at 1]. Hay did not, however, testify that the new 

evaluation system did not alter teacher expectations. The portion of her testimony that Halliwell references says 

only: “Q. What is RISE? A. RISE is the State-adopted evaluation model for evaluating the teachers.” [DE 27-1 at 

12]. 
17

held previously since that position differed significantly from the position she held at the time of 

termination). 

 That leaves Halliwell’s argument that one of the school’s primary rationales for 

terminating him—his failure to adequately teach state standards—was pretextual because it was 

not true.8

 But it is not enough for Halliwell to argue that his termination was not warranted; he 

must present evidence that the School’s reasons for terminating him were insincere. See Atanus 

v. Perry, 520 F.3d 662, 674 (7th Cir. 2008). To this end, he says Craig knew he was adequately 

teaching state standards since Craig was aware of Halliwell’s practice of listing state standards 

on his white board and Halliwell’s high test scores. Furthermore, Craig observed Halliwell 

teaching a poem, which could have been consistent with state standard instruction, and reviewed 

lesson plans that Halliwell submitted, which contained references to state standards. 

 But simply showing that Craig could have reasonably reached a different conclusion than 

he did does not show that he was lying. Rather Halliwell must show that Craig’s position was 

“so unreasonable as to create the inference that” it was dishonest. Little v. Illinois Dep’t of 

Revenue, 369 F.3d 1007, 1013 (7th Cir. 2004). On that score he falls short. The record indicates 

that Craig reasonably concluded (rightly or wrongly) that Halliwell was not adequately teaching 

state standards. Indeed, Craig’s letters to Halliwell articulated the basis for his belief that 

Halliwell was not adequately teaching state standards in detail. See, e.g., [DE 27-17 at 2] (noting 

concerns that Halliwell was not adequately teaching standard 2 (nonfiction reading) and standard 

                                                            

8

 Halliwell also makes two other unpersuasive arguments as to pretext, which merit only brief discussion. First, he 

attempts to derive ill intent from his performance evaluations, which he asserts contain directly contradictory 

observations. They do not. For example, contrary to Halliwell’s assertions, one could reasonably find that a 

classroom ought to be more “stimulating and interesting” despite its being clutter free and containing literary 

posters. [DE 27-6 at 1-2]. Second, Halliwell asserts that his teacher improvement plan was a predetermined ruse 

because Craig informed Halliwell that he was not in compliance with it twice before it ended. But if anything it 

would seem that informing Halliwell of his noncompliance with the plan provided him with an opportunity to rectify 

his performance before the plan ended. Moreover, Craig’s detailed explanation as to why Halliwell failed to comply 

with the terms of the plan undermines the conclusion that it was predetermined. [DE 27-21]. 
18

5 (writing a research report); [DE 27-19 at 1] (finding that questions on Halliwell’s quizzes were 

not sufficiently difficult and his lesson plans were underdeveloped). Further, it is hard to make a 

case that Craig’s assessment of Halliwell was unfounded when the principal before him had 

reached similar conclusions, [DE 27-7 at 2-3], and so did the School Board. [DE 27-4]. 

 Nor does Halliwell’s evidence undercut the reasonableness of Craig’s assessment of him. 

Halliwell’s instruction on a poem potentially consistent with state standards, his practice of 

listing state standard numbers on his white board, the high test scores his students received and 

his lesson plans, which contained state standard references, do not compel the conclusion that his 

instruction was adequate. Collectively, this could support an inference that Halliwell’s 

instruction was satisfactory, but it does not render Craig’s finding to the contrary beyond reason. 

As such, it is not evidence of pretext.9

 See Flores v. Preferred Tech. Grp., 182 F.3d 512, 516 

(7th Cir. 1999) (noting that an employer’s assessment of an employee’s conduct, well potentially 

wrong, was not unsupported and thus not susceptible to a finding of pretext). 

 Two additional factors further render any finding of pretext unreasonable. First, it does 

not appear that the School targeted older teachers for performance issues or termination. Nine 

teachers were rated as “needs improvement” or “ineffective” during the 2012-2013 school year: 

five under forty and four over forty. [DE 27-30 at 2]. Furthermore, Craig only recommended 

two teachers other than Halliwell for termination between 2011 and 2013, both in their twenties. 

[DE 27-15 at 4]; [DE 30-2 at 1]. While this is not dispositive, it is nevertheless “hard to make 

out a case for age discrimination when younger workers are also being shown the door.” 

Martino v. MCI Commc’ns Servs., Inc., 574 F.3d 447, 454 (7th Cir. 2009). Second, while 

                                                            

9

 Even if it were, Halliwell still could not survive summary judgment, since that would show only that Craig’s 

assessment of Halliwell’s performance (and not his conduct) was pretextual. See Fischer v. Avanade, Inc., 519 F.3d 

393, 403-04 (7th Cir. 2008) (noting that, where a defendant has offered multiple reasons for its hiring decision, it is 

generally insufficient to withstand summary judgment to show that only one of them is pretextual). 
19

McKee recommended Halliwell for termination in early 2012, the School did not terminate 

Halliwell. Instead, Eccles recognized that Halliwell and McKee may have had a personality 

conflict and elected to give Halliwell an opportunity to work with Craig, the School’s new 

principal. It was only after Craig too recommended Halliwell’s termination that Eccles elected 

to move forward with it. While giving an employee a second chance does not preclude a finding 

of discrimination, it does tend to show that the School was sincere in its efforts to work with 

Halliwell and in its ultimate decision to terminate him for performance deficiencies. 

Accordingly, Halliwell has failed to show that the School’s justification for terminating him was 

pretextual. 

CONCLUSION 

 Consistent with the discussion above, the Court GRANTS IN PART the School’s motion 

to strike [DE 31], but otherwise denies it. The Court further GRANTS the School’s motion for 

summary judgment [DE 21] and DIRECTS the clerk to enter judgment for North White School 

Corporation against Michael Halliwell.10 SO ORDERED. 

 SO ORDERED. 

ENTERED: March 1, 2016 

 /s/ JON E. DEGUILIO 

 Judge 

 United States District Court 

                                                            

10 Since the Court finds no evidence of prohibited animus, it need not address the Defendant’s argument that the 

School Board’s hearing cleansed any animus the School administration may have had.