that, if the allegations were determined to be founded, then Dr. Davis would ensure that a hearing
was convened, (/d. [20(F).) “As a result of this phony investigation,” Plaintiff contends, the Board
“brought spurious and pretextual charges against him.” (/d. 9] 20(G)-().) The Warning Resolution,
Plaintiff urges, contained “false” allegations that were “based solely upon the flawed and phony
investigation.” (/d. 20(I).) Plaintiff thus claims that Defendant retaliated against him after he “had
lawfully protested discrimination and sexual harassment, had lawfully assisted and counseled
victims of sexual and handicap discrimination, and had engaged in protected activity ina manner
recognized by Title Vil." (/d. 9] 21.)
DISCUSSION

Summary judgment is appropriate when, construing the facts in the light most favorable to
the nonmoving party, “the pleadings, depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, show that there is no genuine issue as to any material fact
and that the moving party is entitled to judgment as a matter of law.” FED. R. Civ. P. 56(c);
Hildebrandt v. lil. Dep’t of Natural Res., 347 F.3d 1014, 1024 (7th Cir. 2003) (citation omitted).
Thus, the court may grant summary judgment only “if, on the record as a whole, a rational trier of
fact could not find for the non-moving party.” Venturelli v. ARC Cmty. Servs., Inc., 350 F.3d 592,
598 (7th Cir. 2003) (citation omitted).

Plaintiff essentially claims that Defendant violated Title VI by retaliating against him for

opposing peer student sexual and disability harassment.”® Title Vil prohibits an employer from

26 Significantly, Plaintiff's complaint does not assert claims under Title IX of the
Education Amendments Act of 1972, 20 U.S.C. § 1681, ef seq., or under the Americans with
Disabilities Act. The Supreme Court has held that a defendant school board “may be liable for {its]
deliberate indifference to known acts of peer sexual harassment” pursuant to Title IX, see Davis v.
Monroe County Bd. of Educ., 526 U.S, 629, 648 (1999), and lower courts have found that peer
student disability harassment is actionable under the Americans with Disabilities Act and the
Rehabilitation Act of 1973, see, e.g., M.P. ex rel. K. v. Indep. Sch. Dist. No. 721, 326 F.3d 975,
981-82 (8th Cir. 2003); Biggs v. Bd. of Educ. of Cecil County, 229 F. Supp. 2d 437, 444-45 (D. Md.
2002).

(continued...)

13


some of Plaintiff's female students told him that several of these male students were “harassing”
them and “making obscene and suggestive actions and sexual propositions.” (Hill Aff. {| 5; Pl.’s
56.19 1.)

Second, during the second or third week of school, a group of female seventh and eighth
grade students told Plaintiff that, on the playground, several of these male students “were swearing
at them] a]nd in the most vile sexual ways possible suggesting different things that they wanted the
girls to do to them, calling them bitches ... .” (Hill Dep., at 100-01.) On September 21 or 22,
Plaintiff verbally described this incident to Maciejewski and told her, “This has got to stop. They
don't have the right to do that to those girls." (Hill Dep., at 100-01; Def.'s 56.1 9] 31.) Plaintiff
testified that Maciejewski responded that she would look into the matter. (Hill Dep., at 102.) Third,
at some point prior to October 18, three female students told Plaintiff that P.W. and M.M. chased,
caught, hit, and spit on them while they were walking home from school. (Def.’s 56.1 {| 43; Pl.’s
56.1 J 11; Hill Dep., at 60-62.)

After being told about each of these incidents, Plaintiff “sent the complaining student to
[Maciejewski] with the incident reported on a card.” (Pl.’s 56.1 7] 6, 8; Hill Aff. §] 12; Hill Dep., at
112.) The record does not indicate whether Maciejewski ever in fact spoke with any of these
female students, '' received any cards from them," or took any follow-up actions. It is undisputed

that Plaintiff never complained to anyone at the Board that male students were harassing female

" Plaintiff claims that a female student who complained to Plaintiff about harassing
behavior in December told Plaintiff that when she told Maciejewski about the incident, Maciejewski
“just laughed about it.” (Hill Dep., at 113.) This alleged incident is not relevant to Plaintiff's
retaliation claim, as it occurred after Defendant had completed its investigation of Plaintiff on
November 30.

2 Defendant claims that Plaintiff “admitted, and the record is uncontroverted, that Dr.
Maciejewski did not receive a note card from a female student alleging that she had been subjected
to verbal sexual harassment from a male student.” (Def.'’s Resp. 56.1 {| 6.) To support this
contention, Defendant cites Plaintiff's Response 56.1 [| 35, in which Plaintiff merely admits
Defendant's statement that Plaintiff has no personal knowledge that Maciejewski received any note
cards from female students alleging sexual harassment. (Def.’s 56.1 J] 35.)

4


In Holt v. Lewis, 955 F. Supp. 1385 (N.D. Ala. 1995), aff'd, 109 F.3d 771 (11th Cir. 1997),
astudent had informed the plaintiff, a university professor, that she was being discriminated against
based on her gender. /d. at 1386. The plaintiff directed the student to contact the appropriate
university officials, and the plaintiff himself notified those officials. /d. After one university
administrator told the plaintiff to keep the matter private, the plaintiff informed a trustee by
telephone of the situation. /d. The university informed the plaintiff that it would not renew his
contract because he had contacted the trustee, and the plaintiff resigned. /d. In dismissing the
plaintiff's Title Vil retaliation claim, the court found that, as the plaintiff had not alleged that the
female student had been discharged from employment, not chosen for employment, or denied any
privilege of employment by the university, any retaliation the plaintiff suffered for advocating that
student’s rights was not prohibited by Title Vil. /d. at 1387-88 (citing Bigge v. Albertsons, Inc., 894
F.2d 1497, 1501 (11th Cir. 1990) (stating that a plaintiff must “show that he opposed an unlawful
employment practice which he reasonably believed had occurred” to state a cognizable claim under
42 U.S.C. § 2000e-3(a)).

Regardless how well-meaning Plaintiff's conduct in opposing the male students’ behavior
was, this court concludes that Title Vil does not prohibit peer student disability or sexual
harassment, and any belief to the contrary, however sincerely held, is not objectively reasonable.
A retaliation claim based on opposition to student harassment of other students, therefore, is not
cognizable under Title VII, and Defendant's motion for summary judgment must be granted.

CONCLUSION

Based on the undisputed facts of this case, Plaintiff Allan Hill cannot establish a claim of

retaliation under Title Vil. Therefore, for the reasons stated above, Defendant Board’s Motion

for summary judgment (Doc. No. 15-1) is granted.

ENTER:

Dated: March 29, 2004

17


Plaintiff intimidated male students “for their own good,” one stated that Plaintiff is “a nice teacher
and sometimes just pokes fun at the kids,” and one felt Plaintiff “was only trying to help the boys.”
Of the male students, according to the Report, one stated that “the boys in question sometimes
tease and make fun of others and [Plaintiff] stands up for those others,” another stated that Plaintiff
“never referred to the boys as gangbangers until the after-school incident with the girls,” and
another stated “that the boys have their own gang and that [Plaintiff] will break it up.” Michaels
testified that, during his investigation, he never saw any handwritten notes from female students
and that no one told him the six male students were part of a group called “The Posse.” (Michaels
Dep., at 18-19, 33.) Plaintiff claims that he “told Maciejewski that they should talk to more tha[n}
those that she suggested” (Hill Dep., at 159), but concedes that he never told Michaels that he
should interview particular students. Plaintiff acknowledges, further, that he does not know what
Michaels did during the course of his investigation, and that Michaels “never heard anything about
allegations of sexual harassment” during his investigation. (Def.’s 56.1 {[{f[ 77, 86.)

On November 16, Michaels interviewed Plaintiff regarding the allegations against him.
(Def.’s 56.1 J] 75.) Plaintiff acknowledges that he never told Michaels that he “was aware of
allegations of sexual harassment” during the interview. (/d. / 76.) After Michaels had asked three
or four questions, Plaintiff walked out of the interview, explaining only that “I felt it was in my
interest to terminate the interview.” (Ex. 16 to Hill Dep.; Def.’s 56.1 {J 79, 91.)

In a November 21 memo to Maciejewski, Plaintiff “formally request[ed] a written copy of
[P.W.’'s mother’s] charges.” (Ex. 16 to Hill Dep.) In response, on November 21, Maciejewski wrote
to Plaintiff, “As of this date, NO charges have been brought against you by the Chicago Public
Schools. ... If the allegations are determined to be founded, then Dr. Davis will indicate that a
hearing be convened.” (Ex. 6 to Maciejewski Dep.) The Board did not provide Plaintiff with the
opportunity for a hearing because the Board’s regulations do not require such a hearing where no

charges have been filed.


for T.O. describing the laughing incident; Maciejewski gave S.P. and T.O. a disciplinary detention.
(Def.'s 56.1 fff 42, 45; Exs. 4, 5 to Hill Dep.) Neither J.J. nor his parents ever complained to
Plaintiff or Maciejewski that students had laughed at him, and Plaintiff never spoke to J.J. about
being teased. (Def.’s 56.1 {IJ 46-49.) On October 19, Maciejewski wrote a memo to Plaintiff
stating that P.W.’s mother had complained to Maciejewski earlier that day about Plaintiff's
“gangbanger” comment and explaining that Maciejewski had told P.W.’s mother that “the only way
to put an end to this was for the boys to know that every teacher, parent and neighbor were
watching their behavior.” (Def.’s 56.1 {J 52-54; Ex. 4 to Maciejewski Dep.)

On October 20, while Maciejewski was on vacation, Plaintiff had “a very heated argument”
with P.W.’s mother at school in which she stated that the claims regarding her son were
“unsubstantiated.” (Def.’s 56.1 56; Hill Dep., at 145.) Following this argument, Plaintiff asked
P.W.’s mother to come to his classroom, where, with the three alleged victims and other school
Officials present, P.W. himself acknowledged that the female students’ version of events was
correct. (Hill Dep., at 146.) According to Plaintiff, P.W.'’s mother nevertheless “still stood there
yelling ‘unsubstantiated, unsubstantiated, unsubstantiated.” (/d.) On October 23, K.R.’s father
also faxed a letter to Maciejewski expressing his concern about Plaintiff's use of the expression
“gangbangers.” (Def.’s 56.1 91 57; K.R. father Aff., Ex. G to Def.’s 56.1 | 3; Ex. A to K.R. father
Aff.)

Also on October 23, while Maciejewski was still on vacation, as Plaintiff was driving home,
he saw T.O., A.F., K.R., and another male student (not an alleged Posse member) waiking in the
street, rather than on the adjacent sidewalk; Plaintiff “drove up behind them and yelled at them to
get out of the street.” (Def.’s 56.1 J 84; Hill Dep., at 152-53.) On the evening of October 23,

Deborah Williams (“Williams”), the Launch Apprentice Principal,'* who, with Karen Koegler, the

"8 The record does not describe the duties of a Launch Apprentice Principal.

6


students. (Def.'s 56.1 J] 38.) Plaintiff testified that he never submitted written documentation of
these accusations “because | couldn't prove it. it would almost be like hearsay.” (Hill Dep., at 103.)
Plaintiff acknowledges that he never observed any of the alleged perpetrators sexually harassing
any female students, and that parents of the female students who alleged sexual harassment never
informed Plaintiff that they had voiced their concerns to Maciejewski. (Def.’s 56.1 9{[ 32, 37.)
Vv. Students’ [n-Class Behavior, Plaintiff's Actions, and Parents’ Complaints

During Plaintiff's October 18 seventh grade social studies class, S.P. and T.O. laughed at
another student, J.J., who had a “slow speech pattern,” while J.J. was talking. (Def.’s 56.1 9] 40,
42; Hill Dep., at 40, 60.) Plaintiff testified that all of the alleged members of “The Posse” had
Jaughed at J.J. at various times in class prior to October 18. (Hill Dep., at 40, 55-57, 66-67.) At
some point during this October 18 class, presumably after the laughing incident, Plaintiff told the
alleged Posse members, “If you want to act like gangbangers, we're going to start behaving like
gangbusters.” (Def.’s 56.1 {ff 81-83; Hill Dep., at 149.)

Approximately 30 or 40 minutes after class had ended, Plaintiff brought S.P. and T.O. to
Maciejewski and told her that they had laughed at J.J. and that Plaintiff intended to write them up;
Maciejewski said, “Okay,” and told Plaintiff to inform two other Edgebrook teachers about the
incident. (PI.’s 56.1 {| 53; Hill Dep., at 59-60; 79.) Hill also told Maciejewski (apparently in the
presence of S.P. and T.O.) that “these guys were acting like gangbangers. We should keep them
apart because when they [ajre together they are trouble.” (Hill Dep., at 78-79; Def.’s 56.1 4 80.)
In addition, Plaintiff told Maciejewski about the incident in which P.W. and M.M. allegedly chased,
caught, hit, and spit on three female students. (Def.’s 56.1 {1 43; Pl.’s 56.1 {J 11; Hill Dep., at 60.)
Maciejewski testified that Plaintiff never used the phrases “sexual harassment” or “disability
discrimination” to describe these incidents. (Maciejewski Dep., at 112-13.)

After talking with Maciejewski, Plaintiff submitted a Misconduct Report for S.P. and another


147); Defendant does not address this contention.
Vv. Incident Reports and Board Investigation

On October 25, after informing Plaintiff of the parents’ complaints, Maciejewski prepared
two Incident Reports regarding those complaints.** (Def.’s 56.1 9] 66-67; Maciejewski Dep., at 93-
95.) The first, describing “alleged unprofessional, intimidating and libelous behavior on the part of
a teacher,” stated that the parents of A.F., T.0., S.P., K.R., and P.W. had alleged that Plaintiff had
“verbally abus(ed] and verbally intimidat[ed] their... sons, . . . [and had] publicly brand[ed) their
sons as ‘gang bangers.” (Ex. 3 to Maciejewski Dep.) The second, describing “alleged stalking of
students,” stated that the parents of K.R., AF, and TO had alleged that Plaintiff “was observed to
follow [their children] in his truck after school on 10/23.” (Ex. 2 to Maciejewski Dep.)

Maciejewski submitted these Incident Reports to the Director of the Board’s Department of
Investigations, who assigned Investigator Philip Michaels (‘Michaels’) to investigate the allegations.
(Michaels Dep., at 7-9; Ex. 2 to Michaels Dep.) On an unspecified date, Maciejewski met with
Michaels and gave him the letters penned by the parents of SP, K.R., and P.W., as well as amemo
drafted by Williams describing Plaintiff's actions on October 20 and 23. (Michaels Dep., at 10-11;
Ex. 1 to Michaels Dep.) On November 7 and 8, Michaels interviewed all six alleged Posse
members. Michaels then asked Maciejewski for a “random sampling” of other students in the class
whom he could interview. (Maciejewski Dep., at 83-84.) Maciejewski gave Michaels the names
of three female and three male students whose parents she was able to contact, and Michaels
interviewed these students between November 8 and November 16.’ (/d. at 84; Ex. 2 to Michaels

Dep.) In the Incident Report, Michaels wrote that one of the female students told Michaels that

*° These are the only Incident Reports that Maciejewski has prepared in her career as
principal. (PI.’s 56.1 J 46.)

” Plaintiff claims that Maciejewski did not give Michaels the names of any of the
female students who had accused alleged Posse members of harassing them, but offers no
support for this contention. (PI.’s 56.1 {| 44.)


Minute Order Porn (06/97)

United States District Court, Northern District of Illinois

Name of Assigned Judge Sitting Judge if Other
or Magistrate Judge Repedea R. Pallmeyer than Assigned Judge
CASE NUMBER Y 02 C 3534 | DATE 3/31/2004
CASE Allan Hill vs. Chicago Board of Education
TITLE
[In the following box (a) indicate the party filing the motion, c.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented.]
DOCKET ENTRY:
qd) oO Filed motion of [ use listing in “Motion” box above.]
(2) o Brief in support of motion due
(3) oO Answer brief to motion due. . Reply to answer brief due.
(4) a] Ruling/Hearing on set for at
(5) im) Status hearing{held/continued to} [set for/re-set for} on set for at
(6) QO Pretrial conference[held/continued to] [set for/re-set for] on __ set for at +
(7) Q Trial[set for/re-set for] on at
(8) a [Bench/Jury trial] [Hearing] held/continued to at
(9) o This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OOFRCP4(m) CiLocal Rule 41.1. COFRCP41(a\(1) 0 FRCP41(a)(2).
(0) [Other docket entry) | Enter Amended Memorandum Opinion and Order nunc pro tune 3/29/04.
Memorandum is amended only on the signature page to reflect the date to be March 29, 2004.
a1) @ (For further detail see order attached to the original minute order-]
No notices required, advised in open court. Document
‘ “ > Number
No notices required. ‘
umber of notices
UY | Notices mailed by judge’s staff. MER of ace
Notified counsel by telephone. ie docketed
Docketing to mail notices.
Mail AO 450 form. j
Copy to judge/magistrate judge. a "\
s/si/no04
courtroom agit i e ue Ap date mailed notice
ETV deputy’s . erv
initials °
Date/time.received in -
central Clerk's Office mmsiting deputy iniials
we


Ciesil Aff. 12.) The Resolution stated that Plaintiff had “engaged in unsatisfactory conduct” and
warned Plaintiff

to correct the following deficiencies . . . you have referred to a group of male

students as “gangbangers” and used other derogatory terms in referencing these

students in front of your class and in other public settings. . . . you have followed

this same group of male students after schoof hours in your vehicle as a form of

intimidation. . . . [and] you have used other forms of intimidation toward this same

group of male students by making statements and comments in an effort to

intimidate and/or humiliate them.”*

(Ex. 19 to Hill Dep.) The Resolution concluded, “Dismissal will be requested if you fail to comply
with directives for improvement as noted above.” (/d.)

On January 16, 2001, Ciesil informed Plaintiff that he would receive the Warning
Resolution, which Plaintiff did receive on January 25. (Def.’s 56.1 JJ 103-04.) Plaintiff does not
recall telling anyone that he felt the issuance of the Resolution was in retaliation for his engaging
in a protected activity. (/d. [ 106.) It is undisputed that neither Michaels nor Maciejewski was
involved in the decision to discipline Plaintiff. (/d. {J 90, 109.)

Ina February 13, 2001 letter to Vailas, Plaintiff stated, “I completely and categorically deny
the conduct listed in the Warning Resolution. These alleged deficiencies are fabrications of my
conduct and are neither accurate nor true. The deficiencies listed in this warning resolution are
totally scurrilous to my reputation after 40 years with the Chicago Board of Education.” (Ex. 20 to
Hill Dep.)

On or about May 2, 2001, Plaintiff filed a Charge of Discrimination and Retaliation with the
Illinois Department of Human Rights ("IDHR”) and the U.S. Equal Employment Opportunity

Commission (“EEOC”). (Def.’s 56.1 J 9-10; Ex. B to Def.’s 56.1.) On March 4, 2002, the U.S.

20(._ continued)
q 13.)

a The record does not indicate what “other forms of intimidation” Plaintiff allegedly
engaged in.

11


On November 30, Michaels completed his investigation and drafted an Investigative Report
in which he recommended that the allegations in the Incident Report be classified as
“substantiated.” (Def.’s 56.1 9] 94; Ex. 2 to Michaels Dep.) Michaels submitted this Report to the
Director of Investigations, who forwarded it to Dr. Davis. (Michaels Dep., at 16.) In or about
December 2000, an unnamed individual in the Office of Schools and Regions forwarded the
investigative Report to James Ciesil (“Ciesil”), the Senior Assistant General Counsel to the Board
responsible for the Law Department’s Discipline Unit. (Def.’s 56.1 | 94; Ciesil Aff., Ex. F to Def.’s
56.1 If] 2, 4.)

Vi. Warning Resolution

On an unspecified date, Ciesil, who did not know that Plaintiff had made allegations of
sexual harassment or disability discrimination, recommended to Marilyn Johnson (“Johnson”), then-
General Counsel to the Board, that Plaintiff receive a Warning Resolution (the “Resolution”)
pursuant to § 34-85 of the Illinois School Code; Johnson agreed and directed Ciesil to draft such
a Resolution.”* (Def.’s 56.1 1] 96, 98, 99, 101; Ciesil Aff. Jf] 8, 10, 14, 16.) According to Ciesil,
the Board's “rules and regulations’® allow [it] to adopt Warning Resolutions against tenured
teachers without the need for a hearing or other due process.” (Def.’s 56.1 {[ 100; Ciesil Aff. 7 15.)

Johnson signed the Resolution and submitted it to Paul Vallas (“Vallas”), then-Chief
Executive Officer of the Board. (Ciesil Aff. ] 11.) Vallas signed the Resolution and submitted it to

the Board, which adopted the Resolution at its January 24, 2001 meeting.” (Def.’s 56.1 {| 102;

8 Section 34-85 provides, “Before service of notice of charges on account of causes
that may be deemed to be remediable, [a tenured] teacher . . . shall be given reasonable warning
in writing, stating specifically the causes which, if not removed, may result in charges.” 105 ILCS
5/34-85.

"9 These “rules and regulations” are not in the record.
20 During the period July 1, 1995 to July 31, 2003, according to Ciesil, the Board
adopted approximately 480 Warning Resolutions, or about five per monthly meeting. (Ciesil Aff.
(continued...)

10


Assigned Assistant Principal,"* was “in charge” of Edgebrook while Maciejewski was on vacation,
called Maciejewski at her home and read to her letters she had received from S.P.'s parents and
K.R.'s father complaining about Plaintiff's “gangbangers” remark. (Def.’s 56.1 {[ 58; Maciejewski
Dep., at 61, 67; Exs. 9-11 to Maciejewski Dep.)

On October 24, while Maciejewski was at the Board’s regional office to attend a meeting,
Eva Nickolich, Region One Superintendent, told Maciejewski that she had received complaints from
several parents regarding Plaintiff's “gangbangers” remark and directed Maciejewski to prepare
an tncident Report regarding these complaints. (Def.’s 56.1 159-60.) Maciejewski recommended
to Nickolich that an investigator be assigned to investigate the parents’ complaints “to ensure
fairness.” (/d. {] 62.) When Maciejewski returned to Edgebrook on October 24, an unidentified
individual gave her the letters from S.P.’s parents and K.R.’s father. (/d. J 63.) Also on
October 24, K.R.'s father faxed a letter to Maciejewski claiming that Plaintiff had “followed my son
and his classmates after school” the previous day. (Ex. 12 to Maciejewski Dep.) In addition, on
October 24, P.W.'s parents sent two letters to Maciejewski, one complaining about Plaintiff's
“gangbangers” remark, and the other describing the October 20 "heated argument” between
Plaintiff and P.W.’s mother. (Exs. 13-14 to Maciejewski Dep.)

Later on October 24, Maciejewski and Rafael Sanchez (“Sanchez”), Region One
Administrator, held conferences with the parents of A.F., T.O., P.W., and K.R., during which
Maciejewski and Sanchez informed the parents that Maciejewski would request that Dr. Blondean
Davis, Chief Officer of Schools and Regions, initiate a formal investigation of Plaintiff's October 18
“gangbangers” comment and October 23 yelling incident. (Ex. 1 to Michaels Dep., Ex. E to Def.'s

56.1.) Plaintiff claims that Maciejewski told him he “was not to attend” the meeting; (Hill Dep., at

“ The record does not describe the duties of an Assigned Assistant Principal.
8 The record contains no information regarding Incident Reports.

7


supervisor for 17
years.® Plaintiff then speaks with the alleged perpetrator of the misconduct. (/d, at 23.)
ute Alleged Harassment of Female Students

in September 2000, a parent and several unnamed students told Plaintiff that six male
students in his seventh grade social studies class—-P.W., S.P., T.0., A.F., K.R., and M.M.~called
themselves “The Posse.” (Hill Dep., at 40, 60-61, 63; Ex. 6 to Maciejewski Dep., Ex. D to Def.’s
56.1; Def.’s 56.1 81; Pl.’s Resp. 56.1” {| 82; Pl.’s 56.1° 15.) Defendant points out that “Plaintiff
has no first hand knowledge that a group of six male students in his class called themselves ‘The
Posse,” but does not challenge Plaintiff's assertion that this report was made. (Def.’s 56.1 {{ 82;
Def.'s Resp. 56.1° 95.) According to Plaintiff, “at least once a week, and sometimes more often,”
during the period September through November 2000, at least five seventh and eighth grade
female students reported to Plaintiff that alleged members of “The Posse” were engaging in
“[iJncidents of harassment.” (PI.’s 56.1 If] 5-6; Hill Aff., Ex. B to Pl.’s Resp, 56.1 9] 11,"° 16; Hill
Dep., at 112.) Again, Defendant notes that “Plaintiff never saw or heard the allege[d] perpetrators
sexually harass the complaining female students.” (Def.’s 56.1 ] 32; Def.’s Resp. 56.1 | 5.)

Plaintiff described three such incidents. First, near the beginning of the 2000-2001 school year,

8 Plaintiff did not indicate why he had the students give the cards to Maciejewski.

7 Plaintiff's Response to Defendant’s Local Rule 56. 1(a)(3) Statement of Undisputed
Facts.

8 Plaintiff's Rule 56.1(b)(3)(B) Statement of Additional Facts.

® Defendant's Response to Plaintiff's Local Rule 56. 1(b)(3)(B) Statement of Additional
Facts.

10 Defendant urges that {| 11 of Plaintiff's affidavit should be stricken because it “uses

the general term ‘harassment’,” while “[t]he survival of [P]laintiff's Title VII retaliation lawsuit . . . is
specifically based on the allegation that he complained of ‘sexual harassment.” (Defendant's
Reply Brief in Further Support of Its Motion for Summary Judgment, at 3-4.) As the court finds that
Title VIl does not prohibit peer student harassment~sexual or otherwise-the court sees no harm
in citing Plaintiff's use of the term “harassment” in this factual background section.

3


discriminating against an employee “because he has opposed any practice made an unlawful
employment practice by” Title Vil. 42 U.S.C. § 2000e-3(a); Hamm v. Weyauwega Milk Prods., Inc.,
332 F.3d 1058, 1066 (7th Cir. 2003). “In other words, Title Vil protects an employee from
retaliation for complaining about the types of discrimination it prohibits.”. Hamm, 332 F.3d at 1066
(internal quotation marks and citation omitted).

This court therefore begins by analyzing whether Plaintiff's activity was protected under Title
Vil. Defendant claims that Plaintiff cannot make out a claim under Title VIl because the behavior
he complained about-peer student sexual and disability harassment-is not actionable under Title
VII.?> (Def.’s Mem.,”’ at 3-6.) Plaintiff urges that his retaliation claim is in fact cognizable under
Title Vil. (PI.’s Mem.,”® at 6.) Unfortunately, neither party cites any relevant authority.

Our Court of Appeals has stated that, to prevail on a Title VII retaliation claim, a plaintiff

need only demonstrate that he “reasonably believed in good faith that the practice []he opposed

5(__ continued)

Plaintiff has not argued that the warning he received violates Title IX, but the court notes
that at least some case law entertains such a theory. Compare Lowrey v. Texas A & M Univ. Sys.,
117 F.3d 242, 249 (5th Cir. 1997) (“[T]itle IX affords a private right of action for retaliation against
the employees of federally funded educational institutions") with Jackson v. Birmingham Bd. of
Educ., 309 F.3d 1333, 1347 (11th Cir. 2002) (“Title IX does not imply a private right of action in
favor of individuals who, although not themselves the victims of gender discrimination, suffer
retaliation because they have complained about gender discrimination suffered by others”)
(emphasis original). Further, Plaintiff arguably may have had a cognizable retaliation claim under
the Americans with Disabilities Act for his complaints about peer disability harassment. See Garber
v. Embry-Riddle Aeronautical Univ., 259 F. Supp. 2d 979, 983 (D. Ariz. 2003). As Plaintiff has not
brought claims under either statute, however, any such claims are waived.

26 Although neither party has addressed the matter, the court notes its own uncertainty
that Plaintiff has suffered an adverse employment action sufficient to sustain a Title VII retaliation
claim. See, e.g., Grube v. Lau Indus., Inc., 257 F.3d 723, 729 (7th Cir. 2001} (“[U]nfair reprimands
or negative performance evaluations, unaccompanied by some tangible job consequence, do not
constitute adverse employment actions”).

7 Defendant's Memorandum in Support of Its Motion for Summary Judgment.
28 Plaintiffs Memorandum in Opposition to Defendant's Motion for Summary
Judgment.

14


and a white student. /d. at 1183. The court stated that “opposing an employer's actions outside
the ambit of an employment practice is unprotected by Title Vil.” /d. (citing Evans v. Kansas City,
Mo. Sch. Dist., 65 F.3d 98, 101 (8th Cir.1995), cert. denied, 517 U.S. 1104 (1996) (finding no Title
VII violation where employee complained about the school principal's actions in complying with a
desegregation order; such a complaint is not based on an employment practice). Plaintiff's claim
that he was retaliated against for opposing discrimination toward students, the court concluded,
was not cognizable under Title Vil. /d.

In Lamb-Bowman v. Delaware State Univ., 152 F. Supp. 2d 553 (D. Del. 2001), affd, No.
01-2045, 2002 WL 1404762 (3d Cir. Jun. 28, 2002), the plaintiff, who was employed as the
defendant university's head women's basketball coach, complained to the university's athletic
director about disparities between the women’s and men’s athletic programs over a period of seven
years. /d. at 554. After the university informed plaintiff that she would not be reappointed, she
brought claims for sex discrimination and retaliation under Title Vill. /d. at 557. In granting
summary judgment for the defendant, the court found that, as the plaintiff had alleged retaliation
by the defendants “because she complained of disparities between the women’s and men’s athletic
programs, a potential violation of Title IX,” she “did not oppose a discriminatory action that is
proscribed by” Title VII, and thus had has failed to state a claim of retaliation under Title VII. /d.
at 561, The court also rejected plaintiffs argument that her claim should be upheld because she
had protested what she believed to be a discriminatory practice. /d. at 561 n.17 (citing Nelson v.
Upsala College, 51 F.3d 383, 388 (3d Cir. 1995) (“The words ‘employment practice’ [in the statute}
suggest that the retaliatory conduct must relate to an employment relationship”). The court noted
that the plaintiff had not alleged that any students were discharged from employment, not chosen
for employment, or otherwise denied any privilege of employment by the defendant. /d. As
“faldvocacy of students’ rights is simply not prohibited by Title Vil,” the court found, the plaintiff
could not have held a “reasonable belief’ that she protested an unlawful employment practice. /d.

16


FACTUAL BACKGROUND

L Plaintiff's Employment History

Plaintiff Hill has been a teacher in the Chicago Public Schools since September 1961. (Hill
Dep., Ex. C to Def.’s 56.1,? at 9.) From 1972 to the present, Plaintiff has taught social studies,
literature, and gym to sixth, seventh, and eighth graders at Edgebrook. (Def.'s 56.1 §]f[15-16.)
i. Disciplinary Procedures

On July 15, 1991, the Board adopted a Uniform Discipline Code (the “Code”), which
established various disciplinary actions for student misconduct.* The Code provides that “[i]f a
student commits a serious act of misconduct, a Misconduct Report is prepared and the
parent/guardian/student is contacted notifying [him or her] of the misconduct.”* During the 2000-
2001 school year, Plaintiff wrote approximately 26 Misconduct Reports. (Def.’s 56.1] 23.) Plaintiff
believes that a teacher may only write a Misconduct Report for an incident that occurs on schoo!
property.® (/d. {| 26; Hill Dep., at 27.) For the past five years or more, however, Plaintiff has
advised students that they may also inform him of student misconduct that occurs off school
property. (Def.’s 56.1124.) If Plaintiff receives more than one report of such misconduct, he asks
the reporting student to describe the misconduct on an index card. (Hill Dep., at 22-23.) If the
incident appears to be sufficiently serious, Plaintiff instructs the student to give the card to Dr.

Dianne Maciejewski (“Maciejewski”), who has been principal of Edgebrook and Plaintiff's immediate

2 Defendant's Local Rule 56.1(a)(3) Statement of Undisputed Material Facts.

3 See http://policy.cps.k12.il.us/documents/705.2.pdf; _http://policy.cps.k12.il.us/
uniform.asp. No sections of the Code are in the record.

4 See hitp://policy.cps.k12.il.us/documents/9. pdf.

§ Although the Code provides that a student may be “subject to discipline for serious

acts of misconduct which occur either off campus or during non-school hours when the misconduct
disrupts or may disrupt the orderly educational process in the Chicago Public Schools,” it does not
indicate whether a teacher may submit a Misconduct Report for incidents that occur off schoo!
grounds. See http://policy.cps.k12.il.us/documents/0.pdf.

2


UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

WARK 3 4 2004

ALLAN HILL,
Plaintiff,
v. No. 02 C 3534

CHICAGO BOARD OF EDUCATION, Judge Rebecca R. Palimeyer

Defendant.

AMENDED MEMORANDUM OPINION AND ORDER

Allan Hill (“Hill”), a teacher at Edgebrook Elementary School (“Edgebrook”), filed this action
in May 2002 against his employer, the Board of Education of the City of Chicago (the “Board”),*
alleging retaliation in violation of Title Vil of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.
(‘Title Vil"). Hill learned from several female that a group of male students in his social studies
class had made lewd remarks and gestures toward and hit and spit on the female students.
Subsequently, after observing two male students in class laughing at a student who spoke slowly,
Hill compared this group of male students to “gangbangers” and reported the incidents to
Edgebrook’s principal. A few days later, while driving home from school, Plaintiff yelled at several
of these male students after he observed them walking in the street. After investigating Hill's
actions, the Board adopted a resolution stating that he had engaged in “unsatisfactory conduct” and
warning that the Board would bring dismissal charges if he again engaged in such conduct. Hill
claims the Board's investigation and resolution were in retaliation for his complaints to the principal
of Edgebrook regarding the male students’ behavior. The Board now moves for summary

judgment. For the reasons stated below, the Board's motion is granted.

’ Hill also named the City of Chicago in its complaint in this action, but on June 4,
2002, this court dismissed the City of Chicago as a party defendant pursuant to Hill's notice of

dismissal, under Rule 41(a)(1)(i). “\


Department of Justice issued Plaintiff a Notice of Right to Sue. (Def.’s 56.1 J 10; Ex. A to Compl.)
Vil. = Complaint

Plaintiff claims that, “based on. . . his training, [he] believed, in good faith, that the. . .
harassment by ‘The Posse’ was sufficiently severe and recurring to establish a hostile school
environment on the basis of gender in violation of the Civil Rights Act of 1964 and the Illinois
Human Rights Act.”?? (Compl. [ 15.) Plaintiff also contends that, “based upon . . . his training . .
- [he] believed, in good faith, that. . . [the students’ laughing at the student who spoke slowly] may
be severe enough to establish a hostile school environment for the victim and possibly . . . violate
the Americans with Disabilities Act®* . . . and the Illinois Human Rights Act.”*4 (Compl. {{ 15.)

Plaintiff claims that Defendant retaliated against him in violation of Title Vil by undertaking
a“phony ... egregious, unprofessional, perfunctory, non-objective[,] discriminatory . . . biased and
prejudiced” investigation based on “false and malicious” allegations made by the alleged Posse
members and their parents. (Compl. ] 20(A)-(C).) Plaintiff urges that the Board undertook this
investigation “in order to discredit [him] and adversely to affect his professional reputation.” (Id.
{120(C).) According to Plaintiff, “[t]he investigators refused . . . to interview any of the students who
had been the victims of the harassment, but instead focused on those who were solicited to provide
derogatory information about the Plaintiff’ and “refused to interview witnesses to the harassment
and witnesses favorable to the Plaintiff during the pretextual and phony investigation, though the
witnesses were specifically identified by the Plaintiff.” (/d. {20(D)-(E).) Plaintiff claims that he “was
never told of any of the charges against him, was never informed of the allegations made against

him, and was never given any due process hearing” despite the fact that Maciejewski told Plaintiff

2 Pub. Act No. 81-1216, 1979; 775 ILCS 5/1-101-5/10-101 (2003).
a 42 U.S.C. § 12101 ef seg.

24 Plaintiff does not claim that Defendant’s treatment of him violated either the
Americans with Disabilities Act or the Illinois Human Rights Act.

12


violated Title Vl,” Fine v. Ryan Int! Airlines, 305 F.3d 746, 752 (7th Cir. 2002) (citation omitted),
but “[t]he complaint must involve discrimination that is prohibited by Title VII." Hamner v. St.
Vincent Hosp. and Health Care Ctr., Inc., 224 F.3d 701, 707 (7th Cir. 2000). In Hamner, the
plaintiff alleged that his former employer terminated him in retaliation for submitting a grievance
alleging same-sex sexual harassment. /d. at 703. In affirming judgment as a matter of law for the
defendant, the court noted that the plaintiff's claim was based solely on his homosexuality, rather
than his sex, and that such harassment was not prohibited by Title VII. /d. at 705. The court stated
that, “[i]f a plaintiff opposed conduct that was not proscribed by Title VIl, no matter how frequent
or severe, then his sincere belief that he opposed an unlawful practice cannot be reasonable.” /d.
at 707 (citing Wimmer v. Suffolk County Police Dept., 176 F.3d 125, 135 (2d Cir.1999) (stating that
opposition to discrimination by co-employees against non-employees is not cognizable under Title
Vil, as the statute only prohibits discrimination by employers, not co-employees, and thus plaintiff's
opposition was not directed at an unlawful employment practice)). The court found, further, that
although Plaintiff believed there was no difference between his sex and his sexual orientation, such
belief was not “objectively reasonable,” as Title VII only prohibits employers from harassing
employees because of their sex. /d. The court concluded, therefore, that “no reasonable jury could
find that [the plaintiff] reasonably believed that his grievance was directed at an unlawful
employment practice under Title VII.” /d.

As with discrimination based on sexual orientation, sexual or disability harassment by one
student against another is not an unlawful employment practice under Title VII. Although our own
Court of Appeals has not addressed the issue, several other courts have concluded that Title VII
does not prohibit retaliation for opposing such peer student harassment. In Artis v. Francis Howell
North Band Booster Ass'n, Inc., 161 F.3d 1178 (8th Cir. 1998), the plaintiff, a supplemental
marching band instructor, alleged he was fired in retaliation for complaining to the school’s principal
and three assistant superintendents about the principal's perceived disparate treatment of a black

15