No, 01 C 8520 Page 4

To determine whether a public employee’s speech deserves First Amendment
protection, we apply a two-part test. Wainscott v. Henry, 315 F.3d 844, 848 (7" Cir. 2003).
First, we must determine whether plaintiff engaged in the speech as a private citizen on a
matter of public concern. Connick v. Myers, 461 U.S. 138, 147 (1983). We then balance the

employee’s interest in commenting against the employer’s interest in efficient public services.

Pickering v. Board of Educ., 391 U.S. 563, 568 (1968).

Plaintiff alleges that she made two statements for which defendants retaliated. The first
was the report about the lack of textbooks and materials in the schools and the second was the
complaint about the election procedure. She argues that because these issues affected the
public schools they are clearly matters of public interest and therefore deserving of
constitutional protection. The inquiry is not this simple however. We must look at the context
of plaintiff's speech. Wainscott, 315 F.3d at 850. If the statements were made as part of
Smith’s job duties, she was not making the statements as a concerned citizen, but rather as an

employee. Michael v. St. Joseph County, 259 F.3d 842, 846 (7" Cir. 2001).

“Speech which is made in all respects as part of the employee’s job duties is generally
not the protected expression of the public employee.” Gonzalez y. City of Chicago, 239 F.3d
939, 942 (7 Cir. 2001). It is unclear whether or not plaintiffs speech is entitled to
constitutional protection. While her position on the PPAC, her speech to the Board, and her
attempt to become the school’s LSC representative, were all made as part of her role as a
teacher, they were not a mandatory part of her employment.

Even assuming plaintiff could demonstrate that her speech was constitutionally

protected, she has no evidence that any of defendants’ actions were improperly motivated by



:

No. 01 C 8520 Page9

Defendants subsequently filed a motion to strike portions of defendants’ affidavit in
support of her response to defendants’ statement of material facts. A party may not create an
issue of fact by submitting an affidavit that contradicts prior deposition testimony. Adusumilli
y. City of Chicago, 164 F.3d 353, 360 (7" Cir. 1998). Where an affidavit and testimony are in
conflict, the affidavit is disregarded unless it can be shown that the deposition testimony was
amistake. Id. It does appear that there are a few inconsistencies between plaintiff's deposition
and her subsequent affidavit. In deciding the summary judgment motion, however, we looked
at both the affidavit and testimony to find undisputed facts that support the granting of the
summary judgment motion. For that reason, we deny defendants’ motion to strike as moot.

CONCLUSION
For the foregoing reasons, defendants’ motion for summary judgment is granted and

their motion to strike is denied as moot.

JAMES B. MORAN
ior Judge, U. S. District Court

Nene 13, 2003.



No. 01 C 8520 Page 6

information, instead choosing to ask LSC member Betty Hamer and other Board employees.
She presents no evidence that any of these Board members intentionally declined to give her
the information or that her desire to run in the election was thwarted by defendants in any
way — she was able to register for the election and lost by one vote.

The record also reveals no irregularities in the election procedure. While plaintiff
argues that defendants failed to provide a neutral monitor for the election, she does not dispute
that Bill Davis, from the Board’s office of school and community relations, was present for at
least 45 minutes to monitor the election. Likewise, there was nothing improper in Dunn’s
waiting until after Board approval before announcing the results because the election was non-
binding and the Board had the final power to approve the elected candidate. Plaintiff does not
explain how she was prejudiced in any way by the election procedures.

III. Disciplinary Measures

The evidence shows that defendants had substantial justification for all of the

disciplinary measures taken and that these measures were not motivated by plaintiff's speech.

A. Electronic Grade Submissions

Plaintiff contends that she was improperly disciplined for her failure to submit her
grades in electronic form and was suspended without a fair hearing and without the
opportunity to find union representation. The school announced in the spring of 2000 that it
would begin requiring electronic grade submissions in the fall of that year and notified all of
the teachers. Plaintiff admitted at her deposition that she was aware of the new policy, that
she failed to properly submit her grades and subsequently notified Dunn that she would not

do so electronically. Dunn then began pre-disciplinary procedures and informed plaintiff that



No. 01 C 8520 Page 5

retaliation for her speech. Plaintiff relies heavily on the timing of defendants’ disciplinary
measures ~ she had worked for the Board since 1974 and was never disciplined until she began
planning to make the speech about the lack of textbooks. Suspicious timing alone does not
constitute sufficient evidence that defendants were motivated by plaintiff’s speech. See Pugh
y. City of Attica, 259 F.3d 619, 628-29 (7" Cir. 2001) (holding that in a discrimination claim,
timing is only “circumstantial, indirect, evidence”).
IL. Textbooks Speech

Plaintiff alleges that defendant tried to prevent her from speaking about the perceived
lack of textbooks by turning out the lights and prematurely ending the meeting. There is no
evidence however that plaintiff's speech was disrupted in any way. The record shows that the
lights at the meeting were turned off for a few minutes, but were quickly turned on, allowing
plaintiff to complete her presentation and answer some questions from the audience. There
isno evidence supporting plaintiffs allegation that someone (under the direction of defendants
or otherwise) intentionally turned the lights off, or that anyone left the meeting during the time
they were off. At worst, a few audience members were not able to ask specific questions before
the meeting ended. There is nothing to indicate that defendants made any effort to stop
plaintiff from speaking or that she was actually prevented from speaking in any meaningful
way.
IL. Election Irregularities

Plaintiff next claims that defendants prevented her election as the LSC teacher
representative from her school by failing to provide her with required materials and then by

improperly conducting the election. Plaintiff never actually asked Dunn for the election


No. 01 C 8520 Page 8

than another employee, based on a prohibited reason, she must demonstrate that she was
similarly situated with respect to performance, qualifications and conduct, Radue v.
Kimberly-Clark Corp., 219 F.3d 612, 618 (7" Cir. 2000). Again, plaintiff presents no evidence
that she was similarly situated to any teachers who were supposedly treated differently.

C. Allegations of Striking a Student

Plaintiff finally alleges that defendants falsely accused her of striking a student,
disciplined her based on this allegation, and encouraged the student’s family to file a complaint
with the police. The student, E.R., testified that plaintiff injured her because she was talking
during class. She then reported the incident to her mother, L.C., who decided to report the
incident to the schoo]. Dunn was required by law to report the incident to DCFS and did so,
resulting in plaintiff's arrest and removal from the classroom. While DCFS chose not to
prosecute the case criminally, Dunn initiated disciplinary action and, following a Board
investigation, plaintiff was suspended for five days.

Plaintiff points to no evidence to suggest that defendants did anything improper in
handling E.R.’s complaint of abuse. While she denies the charges made by the student and her
mother, plaintiff does not present any evidence that defendants fabricated the charge or were
influenced by her speech in handling the investigation, other than arguing that the charge
oust have been false because DCFS decided not to prosecute her criminally. In making their
decision, DCFS workers were searching for evidence of a substantial risk of serious bodily
harm to the student. The Board’s rules, on the other hand, prohibit any form of corporal
punishment.

Motion to Strike



© Minute Order Porm (06/97)

\sW United States District Court, Northern District of Illinois

0)

Name of Assigned Jud Sitting Judge if Oth
or Magistrate Judge James B. Moran than Assigned Judge
CASE NUMBER 01 C 8520 DATE 6/13/2003
CASE Diane Smith vs. Stephanie Dunn etc. et al.
TITLE

[In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature

of the motion being presented.)

MOTION:
Memorandum Opinion and Order
DOCKET ENTRY:
qd) Oo Filed motion of [ use listing in “Motion” box above.]
(2) im) Brief in support of motion due
(3) Oo Answer brief to motion due___. Reply to answer brief due
(4) Oo Ruling/Hearingon___—sset for at
(5) im Status hearing[held/continued to] {set for/re-set forlon__—setfor__—_att
(6) Oo Pretrial conference[held/continued to] [set for/re-set for]on__—setfor__——saat__—.
(@) im) Trial[set for/re-set for]on__—at__
(8) o {Bench/Jury trial] [Hearing] held/continuedto_ at
(9) im This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

OOFRCP4(m) OLocal Rule 41.1 COFRCP41(a)(1) OFRCP41(a)(2).

qo) of [Other docket entry] Enter Memorandum Opinion and Order. Defendants’ motion for summary

judgment is granted and their motion to strike is denied as moot.

db ff [For further detail see order attached to the original minute order.]

No notices required, advised in open court.

No notices required.
es req number of notices

Notices mailed by judge's staff.

SUN 4 6 2003

Notified counsel by telephone. date docketed

wv | Docketing to mail notices.

7) MAINO 489 om. jynod igiyisia’s'a
Copy to judge/magistrate judge. \ MY = 4 4
couteon 19: He 61 NM &U
WAH deputy’s .
initials Sate chy ITY
pitts, tS
central Clerk's Office maiting deputy initials:



No. 01 C 8520 Page 7

she had the right to union representation. Plaintiff declined to seek such representation
because she was concerned about her standing within the union. After a hearing, Dunn
suspended plaintiff for one day, for which she was paid. Nothing indicates that Dunn or any
of the defendants were motivated by plaintiffs speech in deciding to discipline her or that she
suffered any injury.

B. Unsupervised Students

Plaintiff's next contention is that she was suspended in March 2001, based on false
allegations, as part of further retaliation. On December 8, 2000, Dunn issued a warning to
plaintiff because she violated Board policy by leaving her students unsupervised on multiple
occasions. On February 23, 2001, Dunn claims to have found plaintiff's students unsupervised
and held a pre-discipline hearing on March 6, 2001, to discuss the alleged violation with the
plaintiff, a union representative and the assistant principal. Pursuant to findings at the
hearing, Dunn suspended plaintiff for two days. On April 4, 2001, this suspension was upheld
by the Board’s department of Jabor and employee relations after a full, de novo hearing.
Again, the evidence shows that defendants were justified in disciplining plaintiff and nothing
indicates that they were motivated by retaliation.

Plaintiff claims that another teacher, Barbara McDonald, told her she was frequently
late in turning in electronic grades and was not disciplined. She also claims that a third
teacher, Ms. Hopkins, was also late and never disciplined. Noticeably absent, however, is any
affidavit from either of those teachers or from anyone else with personal knowledge of the
facts. What we do have is hearsay, which, even if credited, is not enough.

In discrimination cases, when a plaintiff alleges that she was disciplined more harshly



No. 01 C 8520 Page 3

falsely accuse her in March 2001 of striking a student; (4) suspend her in March 2001, based
on false allegations that she had left children unsupervised; (5) issue a warning based on
complaints they knew to be false; and (6) falsely claim that she had abused a student even
though she was subsequently cleared by the Department of Children and Family Services
(DCFS).
DISCUSSION

Summary judgment is appropriate if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with affidavits, if any, show that there is no
issue of material fact and that the moving party is entitled to a judgment as a matter of law.

Fed.R.Civ.P. 56(c); see Celotex Corp. v Catrett, 477 U.S. 317, 322-23 (1986); Bennett y.

Roberts, 295 F.3d 687, 694 (7" Cir. 2002). Our function is merely to determine if there is a

genuine issue for trial. Anderson y. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).

We undertake a three-step analysis in evaluating a plaintiff's First Amendment
retaliation claim under § 1983, Vukadanovich v. Board of School Trustees of North Newton
School Corp., 278 F.3d 693, 699 (7" Cir. 2002). We must first determine whether plaintiff's
speech was constitutionally protected. Id. Second, we determine whether defendants?
retaliatory actions were motivated by her speech. Jd. Third, we must establish whether the
defendants would have taken the same steps in the absence of the speech. Id, If the plaintiff
is able to establish the first two prongs of the test, the burden then shifts to the defendant to
prove the third prong by a preponderance of evidence. Id. Finally, if the defendants meet this
burden, the plaintiff has an opportunity to rebut by showing that the defendants’ reasons were

pretextual. Id.


2

No, 01 C 8520 Page2

expressed concerns about a perceived lack of textbooks and other materials in the local
schools.

In December 2000, plaintiff decided to run for an elected position on the LSC as the
representative of her school. LSC elections for school representatives are non-binding polls,
meaning that the result does not become final until the Board approves the elected teacher.
Plaintiff claims that she asked for information about running in the elections, but that
defendants failed to provide her with the requested information. Plaintiff also claims that she
asked to have the election monitored by the Community Relations Office in order to ensure
fairness.

The defendants allegedly held the vote in January 2001, monitored by Bill Davis, from
the Board’s Officer of School and Community Relations. Dunn waited until after Board
approval of the election in February 2001 before announcing that plaintiff had lost the election
by one vote. Plaintiff contested the election results, arguing that defendants delayed in
providing the results of the election, that they failed to provide plaintiff with sufficient
information about running in the election, and that they failed to provide for a neutral
monitor.

Plaintiff claims that defendants retaliated against her for expressing her beliefs about
the lack of textbooks and the election irregularities, thereby violating her First Amendment
right to free speech. She specifically alleges that defendants acted together to (J) stop her from
speaking about the alleged lack of textbooks by turning out the lights at the meeting; (2)
attempt to suspend her in December 2001, based on knowingly false accusations that plaintiff

had failed to submit her grades electronically and to do so without union representation; (3)



IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
DIANE SMITH, )
)
Plaintiff, )
)
vs. ) No. 01 C 8520
)
STEPHANIE DUNN, individually and as y
Principal of Edmund Burke School; and y
CHICAGO SCHOOL REFORM BOARD OF)
TRUSTEES, ) )
)
Defendants. ) ney,
Soy, "ED

6 <0a3
MEMORANDUM OPINION AND ORDER

Plaintiff Diane Smith brought this action under 42 U.S.C. § 1983 against defendants
Stephanie Dunn and the Chicago School Reform Board of Trustees (Board) alleging violations
of her rights of free speech and association pursuant to the First and Fourteenth Amendments
to the United States Constitution. Defendants filed a motion seeking summary judgment
pursuant to Federal Rule of Civil Procedure 56 and a motion to strike portions of plaintiff's
affidavit. For the following reasons, defendants’ motion for summary judgment is granted
and their motion to strike is denied as moot.

BACKGROUND

Plaintiff Smith was employed by the Board as a teacher at the Edmund Burke School
in Chicago, at which defendant Dunn is the principal. In September 2000, she voluntarily
became involved in the Professional Advisory Council (PPAC), a group of teachers that
provides assistance to both the principal and the Local School Council (LSC) on matters of

concern relating to curriculum and programs. At a LSC meeting in October 2000, plaintiff

5