occur~--instead he offers an alternative explanation for why they
occurred. Even if the asserted grounds underlying the numerous
facts underlying such complaints were open to multiple
interpretations or--as Brogan contends--were unfounded (something
that has no support in the record other than Brogan's own self-
appraisal), Kurland had no reason to suspect that the complaints
were illegitimate. Kurland’s receipt of numerous complaints
about Brogan’s allegedly intimidating and harassing behavior were
more than sufficient to allow her to form an honest belief that
Brogan was acting in that manner. Brogan’s own subjective view
that Kurland’s actions were retaliatory is insufficient to create

an issue of material fact (Johnson v. Univ. of Wis.-Eau Claire,

70 F.3d 469, 480 (7th Cir. 1995)). As long as an employer’s
reasons were honestly held, such reasons can even be “mistaken,
ill considered or foolish” (Jordan v. Summers, 205 F.3d 337, 343
(7th Cir. 2000)).7

Brogan also fails in any effort to show that the stated
justifications were not the real reasons for disciplining him.
Brogan claims that the first suspension occurred only a month

after his request for Council minutes and his allusions to

7 What has just been said in the text should not be
misunderstood as even suggesting anything of the sort. To the
contrary, nothing in the record can support any such pejorative
characterization. Instead the point is that Brogan would not
prevail even if the reasons for imposing discipline had been that
questionable--as they were not.

13


teachers (D. St. 44). Hartung was the Council's chairperson from
1999 to 2001 (D. St. 45).

Brogan says that before his resignation in June 2001 he
consistently raised issues and concerns during public Council
meetings and Nettlehorst faculty meetings (B. Mem. 3-4). Brogan
points to his voicing of concerns over (1) Nettlehorst’s grouping
students by ability, (2) Nettelhorst’s method of administering
and utilizing some types of testing of its students and
(3) problems in Nettelhorst’s special education program (id.).
Brogan also requested Council minutes and sought to videotape the
public Council meetings (B. St. §§188-99), as well as inquiring
into Kurland’s and the Council’s management of Nettelhorst
finances (B. St. 9200-15). According to Brogan, Kurland’s
initiation of the disciplinary actions described next was in
retaliation for his outspokenness (B. Mem. 1).

First Disciplinary Action®

On September 25, 2000 Kurland recommended a five-day
suspension for Brogan, based on numerous complaints that she had
received from other staff members at Nettelhorst who complained
of Brogan’s abusive conduct towards them (K. Mem. 3). Kurland
identifies six different incidents that were reported to her as

leading to the first disciplinary action.

5 Because the parties have referred to a number of
individuals by their last names only, this opinion must perforce
mirror that usage.


motions for summary judgment are granted, and Brogan’s claims and

this action are dismissed in their entirety.

Cl, Moe PEs

Milton I. Shadur
Senior United States District Judge

Date: May 21, 2003

17


basis for the disciplinary action was Brogan’s use of school time
to go through the hallways of the school to observe what other
teachers were doing in an effort to refute Kurland’s observations
on his own classroom (id. §66). Finally, Brogan also used
students to gather information about the videotape that was the
basis of the second disciplinary action (id. 67).

Fourth Disciplinary Action

Kurland initiated the fourth disciplinary hearing on
March 23, 2001 for two reasons: Brogan refused to accept the
third disciplinary notice because it contained a handwritten
rather than a typed change (D. St. 468), and Brogan allegedly
engaged in inappropriate conduct during a faculty meeting (id.
69). Brogan acknowledges that during the March 21 faculty
meeting he discussed that he had been disciplined and stated that
all faculty members should make sure that they get copies of the
disciplinary code (id. 469). Brogan also indicated during the
faculty meeting that his dispute might end up in federal court
(id. 970). Staff members told Kurland about Brogan’s comments,
and several wrote letters indicating that they were highly
offended by his comments (id. 971, 73).

Kurland told Brogan that it was inappropriate to spend staff
time discussing his disciplinary issues (id. 472). Approving
both the March 9 and March 23 disciplinary actions, the Director

of Board's Office of Labor Relations reduced the duration of the


acknowledged that she authored everything that appears in the
memo except for one heading and a date (id. at 15, 16, 19, 24),
and she also testified that nothing in the November 23 memorandum
is inaccurate except for the date originally given as September
21, 1999 (id. at 44-45).

Flanagan’s memorandum to Kurland began by stating “It has
come to my attention that Mr. Brogan has again displayed
unprofessional behavior toward a fellow employee,” and it then
recounted Brogan’s behavior with Haney, Frank, Jones and
Fitzpatrick (D. Ex. Flanagan Dep. at B-000125). Flanagan then
went on to say, “Apparently Mr. Brogan feels that he can behave
unprofessionally, bully, or intimidate, and receive no meaningful
conseguences,” and she ended by characterizing Brogan’s behavior
as a “serious and flagrant violation of the teachers’ right to
work under a ‘safe and healthful’ environment” (id.).

In formulating the September 25, 2000 disciplinary action,
Kurland also relied on reports about Brogan’s behavior with
Assistant Principal Margaret Kouretsos (“Kouretsos”) as well as
with a school parent and another teacher. Those three incidents
are described next.

On August 21, 2000 Kouretsos complained that Brogan was
disrespectful toward her and called her “rude” when Brogan
insisted on finishing a private and personal conversation with

another teacher before Kouretsos could speak with Brogan about a


First, on September 15, 1999 staff member Haney complained
that Brogan intimidated her when he confronted her on the school
stairs and chastised her in front of numerous students (D. St.
(30a). Brogan argues that Haney’s complaint was inaccurate, but
he acknowledges that he had a difficult time with Haney and that
he expressed his frustration with her (B. Resp. St. 30a)

Shortly thereafter two other Nettelhorst staff members,
Jones and Frank, complained that Brogan offended them when he
scolded them over the microphone to be quiet (D. St. §30b).
Brogan does not dispute the factual basis, but instead points to
Kurland’s failure to castigate him during a meeting about the
morning reading program (B. Resp. St. §30b).

Nettelhorst Guidance Counselor Fitzpatrick complained of
Brogan'’s behavior toward her when Brogan spoke with her about his
disagreement over a student’s individual educational plan (D. St.
q30c). Brogan claims that he was unaware of Fitzpatrick’s
complaint and that he did not shout or yell at her (B. Resp. St.
q30c).

All of those first three concerns were brought to teacher's
union delegate Paulette Flanagan (“Flanagan”), who later brought
them to Kurland’s attention (D. St. 930d). Kurland relied ona
November 23, 1999 memorandum that summarized the complaints (K.
Mem. 5). Although Flanagan denied drafting the memorandum in the

form shown at her deposition (B. Ex. P at 13-16), she



videotaping proceedings in his classroom (id. 438), Kurland asked
him if she could review a copy of that videotape (id. §43) in
accordance with school rules that any videotape had to be given
to the principal for review (id. 440). After Brogan asked why
she needed to see the videotape, Kurland again requested the
videotape (id. 944). Brogan refused to comply with Kurland’s
request, basing his refusal on the premise that the request was
unclear because Kurland had requested a videotape of his “class,”
while the videotape involved only several students of his class
(id. §48).

Brogan was ultimately issued a four-day suspension on
January 9, 2001 (id. 436), and he apologized for his behavior
toward Kurland (id. 953). After a hearing on the matter, the
Board through its Office of Labor Relations upheld the
disciplinary action (id. 436).

Third Disciplinary Action

Kurland says that she initiated the third disciplinary
action against Brogan on March 9, 2001 when she learned that he
had assigned his students a writing project to dispute a
classroom observation that Kurland had made and to continue to
fight the second disciplinary action about the videotape (K. Mem.
7; D. St. 9955, 58). Brogan admits that he gave the assignments
and further admits that he intended to use the documents to

refute Kurland’s observations (D. St. 4959-61, 64). Another


“Mina Order Fst (0657)

HH (y United States District Court, Northern District of Illinois
4

Name of Assigned Judge
or Magistrate Judge

Milton J. Shadur

Sitting Judge if Other
than Assigned Judge

No notices required.

Notices mailed by judge's staff.

Notified counsel by telephone,

wv | Docketing to mail notices,

Mail AO 450 form.

Copy to judge/magistrate judge.

courtroom
SN deputy’s
initials

CASE NUMBER 01 C 4216 DATE 5/21/2003
CASE Thomas Brogan vs. Chicago School Reform Board
TITLE
[Iu the following box (a) indicate the party filing the motion, ¢.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.]
Q) o Brief in support of motion due
(3) im Answer brief to motion due . Reply to answer brief due.
(4) im} Ruling/Hearing on set for at
(5) Oo Status hearing{held/continued to} [set for/re-set for] on set for at
(6) a Pretrial conference{held/continued to] [set for/re-set for] on set for at :
(7) a Trial[set for/re-set for]}on at _.
(8) o (Bench/Jury trial] [Hearing] held/continued to at _
(9) a This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
COFRCP4(m) Local Rule 41.1 OFRCP41(a)\(1) C1 FRCP41(a)(2).

a0) ow {Other docket entry] | Enter Memorandum Order. For the reasons stated in this memorandum.

opinion and order, all defendants’ motions are granted and this action is dismissed in its entirety. (40-1,

43-1, 44-1, 45-1)
gl ff [For further detail see order attached to the original minute order.]

No notices required, advised in open court. Document
t-— Number

number of notices

MAY 2 2 2003

date dock’

Date/time received in

Ms):

any deputy initials

O

entral Clerk's Office



calls for a three-step analysis set out in Vukadinovich v. Bd. of

Sch. Trustees, 278 FP. 3d 693, 699 (7th Cir. 2002) (citations
omitted and adapted to this case):

1) Was his speech constitutionally protected? 2) If so,
were the defendants' actions motivated by his
constitutionally protected speech? 3) If [Brogan] can
show that his constitutionally protected speech was a
substantial or motivating factor in his termination,
can the defendants show that they would have taken the
same action in the absence of his exercise of his
rights under the First Amendment? If [Brogan] can
establish the first two prongs, the burden shifts to
the defendants to prove by a preponderance of the
evidence that [Brogan] would have been terminated
regardless of his protected speech. If the defendants
carry that burden, [Brogan] bears the burden of
persuasion to show that the defendants' proffered
reasons were pretextual and that discrimination was the
real reason that the defendants fired him. In the
summary judgment context, this means that [Brogan] has
to show that a rational finder of fact could infer that
the defendants' stated reasons for firing him were
lies.

Even if it is assumed arguendo that Brogan can satisfy the
first two prongs,® it cannot be gainsaid that defendants have met
their burden on the third. And that being so, Brogan is defeated

unless he can show (with the benefit of the required reasonable

6 That arguendo assumption is itself questionable. As

Kurland's R. Mem, 1-2 points out, Brogan has admitted (B. St.
49109, 145) that he never raised any issues as to Nettlehorst's
finances during the 1999-2000 school year--or indeed, until
December 2000. Just how, then, could the first suspension in
September 2000 (the instance on which Brogan places his principal
emphasis and, in fact, the linchpin of his claim challenging the
later suspensions) have been retaliatory for protected speech
that had not yet taken place? All that remains, then, in the way
of pre-September-2000 activity are Brogan's requests to the
Council for its minutes and its budget committee minutes--~matters
in which Kurland had no substantive involvement.

ii


two suspensions from the recommended total of 15 days to 10 days
(id. 475).

Fifth Disciplinary Action

On April 9, 2001 Kurland initiated further discipline
against Brogan, this time seeking a five-day suspension for
inappropriate conduct and negligent supervision (D. St. 476).
When observing Brogan’s classroom on February 21, 2001, Kurland
had noticed that the classroom door was locked when students were
in the classroom, that Brogan had provided food to his students
during class time and that he allowed a student to leave the
classroom unsupervised. (id. 479). Brogan acknowledged taking
those actions (id. 4980-82), but he argues that other teachers
have taken similar actions (B. Resp. St. 4980, 82) or that there
were valid reasons for the action (id. 481).

On May 21, 2001 the Director of Board's Office of Labor
Relations reviewed Kurland's five-day recommendation, upholding
the suspension but reducing its term to three days (D. St. 477).
In doing so the Director stated that “repeated acts of purposeful
insubordination and disruption of the school day are indeed
offenses which warrant disciplinary action. The record indicates
there was sufficient basis for such school-based discipline and
supports a three day suspension” (id.).

Retaliation Claim

Any First Amendment retaliation claim under Section 1983

10


question relating to school business (D. St. 430e). Brogan
disputes whether he engaged in inappropriate behavior, but he
does not deny that the interaction occurred (B. Resp. St. 430e).

On August 22, 2000 Kurland received a report that Brogan
intimidated and harassed a parent of a student and Council member
Margaret Tomaszek-Witry (D. St. 430f). Brogan disputes that he
acted inappropriately and refers to another Council member who
did not find Brogan’s behavior intimidating or bizarre and
unprofessional (B. Resp. St. 430f).

On September 12 or 13, 2000 Karen Fasso complained to
Kurland that Brogan had treated her in an unprofessional and
aggressive manner (D. St. 430g). Brogan disputes such
inappropriate treatment (B. Resp. St. 430g).

On review the Board upheld Kurland's disciplinary
recommendation based on those six incidents. It stated (D. St.
29):

[Brogan’s] [slpeaking to co-workers in aggressive,

abrupt and condescending manner on several occasions

and verbally intimidating, threatening or abusing a

supervisor are behaviors that are inappropriate and

seriously disrupt the orderly educational process in

the school. Such behavior violates the Employee

Discipline code, and warrants disciplinary action.

Second Disciplinary Action.

Kurland states that she initiated Brogan’s second
disciplinary action because he was insubordinate (D. St. 435).

Having received information from Kouretsos that Brogan had been


A genuine issue of triable fact exists only if “the

evidence is such that a reasonable jury could return a

verdict for the nonmoving party.”*

As with any summary judgment motion, this Court accepts
nonmovant Brogan’s version of any disputed facts, so long as it
is supported by record evidence. But because (as hereafter
explained) this Court must examine the bona fides of the asserted
justifications for the disciplines imposed on Brogan, and because
Brogan's disputes on that score are better addressed after the
disciplinary actions are described, the Background section that
follows reflects defendants' perception of the situations.

Background

Beginning in 1997 Brogan was a teacher of the Chicago Public
Schools primarily assigned to Louis B. Nettelhorst Elementary
School ("Nettelhorst”) (D. St. §1). During that time Nettlehorst
Principal Kurland initiated discipline against Brogan on five
separate occasions. All of those suspensions were upheld by the
Board, though it sometimes reduced their duration. As for the

Council, under the statutory educational structure it is a public

entity with no authority, duty or responsibility for disciplining

4 Brogan argues that the principle outlined in Anderson,

477 U.S. at 252 should be applied with “added rigor in employment
discrimination cases” (B. Mem. 2). But Alexander v. Wis. Dep’t
of Health & Family Servs., 263 F.3d 673, 680-81 (7th Cir. 2001)
disavows that concept of “added rigor” and makes it clear that
the consideration of summary judgment motions in the employment
context should be undertaken with the same kind of scrutiny as in
other types of cases.



Kurland’s mismanagement of Nettelhorst finances. Similarly he
urges that the timing of the suspension, combined with Kurland’s
reliance on Haney’s nearly year-old complaint, “strains
credibility {sic--presumably “credulity” is what his counsel
means]" to such an extent as to show pretext (B. Mem. 5). But
Pugh, 259 F.3d at 628-29 teaches that just the timing of the
adverse employer action, without more, is insufficient to
establish the protected activity as a motivating factor. And
Brogan has provided nothing more.*®

Brogan next claims that Kurland’s reliance on the Flanagan
memorandum is further proof of defendants' pretextual actions.
Brogan refers to the Flanagan memorandum as “fabricated” and that
“the evidence suggests that Dr. Kurland did not receive the
complaints” (B. Mem. 8). Not so. First, Brogan’s contention
that the Flanagan memorandum is fabricated is not worthy of
discussion, given Flanagan’s acknowledgment of the accuracy of
the contents (B. Ex. P at 44-45). Nor does Brogan’s mention that
Kurland failed to reprimand him in any way undercut the evidence
of the numerous complaints that Kurland received.

Brogan also seeks to characterize Kurland’s stated intention

that “she wanted Brogan out of the building” (B. St. 4§ 282-87,

8 Moreover, there is nothing inappropriate about a

supervisor's not initiating disciplinary charges until the
repetition of improper behavior appears to justify such action,
then including the earlier instances as part of the charges.

14


of constructive discharge, an employee must demonstrate that he
or she was forced to resign because of what a reasonable employee
would have considered unbearable working conditions (Lindale v.
Tokheim Corp., 145 F.3d 953, 955 (7th Cir, 1998)). But that hill

is a very steep one to surmount (see, e.g., Johnson v. Nordstrom

Inc., 260 F.3d 727, 735 (7th Cir. 2001)), and Brogan's short-term

suspensions for insubordination do not even begin to approach
that level. Moreover, Brogan admits that his teaching position
did not interfere with the exercise of free speech, nor did he
believe that his ability to teach was impaired (D. St. 4173 and
B. Resp. St. 4173).
Other Defendants

What has been said to this point compels the granting of
summary judgment in Kurland's favor in all respects. And that
same conclusion applies a fortiori to the other defendants: Not
only does Brogan's total failure on the retaliation front operate
to defeat any such claims against them as well, but they also
have other strings to their bows that independently support the
same outcome.?

Conclusion
There is no genuine issue of material fact, and all

defendants are entitled to judgment as a mater of law. Their

®° under the circumstances, there is no need to lengthen
this opinion further by addressing those added matters. By
definition, one fatal blow is enough.

16


the parties have complied with this District Court's LR 56.1.3
For the reasons stated in this memorandum opinion and order, all
defendants’ motions are granted and this action is dismissed in
its entirety.

Summary Judgment Standards

Familiar Rule 56 principles impose on defendants, as
movants, the burden of establishing the lack of a genuine issue

of material fact (Celotex Corp. v. Catrett, 477 U.S. 317, 322-23

(1986)). For that purpose this Court must “consider the
evidentiary record in the light most favorable to the non-moving
party...and draw all reasonable inferences in his favor” (Lesch

v. Crown Cork & Seal Co., 282 F.3d 467, 471 (7% Cir. 2002)).

And Pugh v. City of Attica, 259 F.3d 619, 625 (7 Cir. 2001) has

echoed the teaching of Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 248 (1986):

complains (although under law the Board and not Kurland was the
ultimate decisionmaker), and because the same analysis that
defeats Brogan's claim against Kurland also dooms his claims
against all other defendants, this opinion will focus in the
first instance on Brogan's position vis-a-vis Kurland.

> LR 56.1 is designed to facilitate the resolution of Rule
56 motions by calling for evidentiary statements and responses to
such statements (in each instance with record citations), thus
highlighting the existence or nonexistence of factual disputes.
This opinion cites to defendants’ LR 56.1(a) (3) statement as "D.
St. 4--," to Brogan’s response as "B. Resp. St. q--,” and to
Brogan’s LR 56.1(b) (3) (B) statement of additional facts as "B.
St. §--.” This opinion employs the same "B." and "D."
abbreviations in referring to the parties’ exhibits ("Ex."), and
it uses “B.” and “K.” (for Kurland) in citing their respective
memoranda ("Mem.").


IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS DOCKETED
EASTERN DIVISION "

MAY 22 2003

THOMAS J. BROGAN,
Plaintiff,
v. No. 01 ¢ 4216

CHICAGO SCHOOL REFORM BOARD OF
TRUSTEES, et al.,

Defendants.
MEMORANDUM ORDER

Thomas Brogan has sued the Chicago School Reform Board of
Trustees,! Nettelhorst Local School Council (“Council”), Susan
Kurland (“Kurland”) and Mary Pat Hartung (“Hartung”) under 42
U.S.C. §1983 (“Section 1983”) for allegedly violating his First
Amendment right to engage in speech on matters of public concern
when defendants allegedly retaliated against him by subjecting
him to adverse terms and conditions of employment, including
harassing disciplinary measures and progressive discipline. All

defendants have moved for summary judgment under Rule 56, and

1 Although Brogan initially named that entity as a

defendant, the terms of its members expired in July 1999 and
members of the new Chicago Board of Education (“Board”) have been
appointed in their place. Consequently the Board is now the
proper party defendant (D. St. §3)--see Fed. R. Civ. P. ("Rule”)
25 (da).

2, Although all defendants join in their factual
submissions, separate motions and supporting memoranda have been
filed by Board, by Council and Hartung (acting jointly) and by
Kurland. Brogan has then tendered a single consolidated
response, and defendants' replies have followed the same format
as their original submissions. Because it was Kurland who
initially imposed all of the disciplinary actions of which Brogan


favorable inferences) that the disciplinary actions were
pretextual. To recapitulate that sequential analysis, the
Background section reflects that the disciplinary actions were
taken for a number of asserted reasons, including insubordination
and intimidating behavior. Because such actions plainly come
under the rubric of inappropriate behavior, the burden shifts to
Brogan to show that the asserted justifications were pretextual.

On that score Vukadinovich, 278 F.2d at 699-700 (adapted to
this case) further teaches that Brogan can show pretext either
“directly, with evidence showing that retaliation was the most
likely motive for [disciplining] him,” or “indirectly, by showing
that the defendants' justifications were not worthy of credence.”
Because Brogan is clearly unable to meet the former alternative,
he must attempt to qualify under the second. And to show that
defendants' justifications were not worthy of credence, Brogan
“must show that 1) the defendants' justifications have no basis
in fact, 2) the justifications were not the real reason for
[disciplining] him, or 3) the justifications were insufficient to
warrant the [discipline]” (id.).

Brogan's best chance in that respect is as to the first
disciplinary actions, but that claim (like the others) fails as a
matter of law. Although Brogan contends that the justification
for that discipline has no basis in fact, that action stemmed

from well-documented incidents that Brogan does not claim did not

12



314) as purportedly evidencing the pretextual nature of the
proffered reasons for any disciplinary action. But that is a
nonsequitur: Any such statement does nothing to indicate that
Kurland wanted Brogan out of the building for retaliatory
reasons, rather than because she believed (with so many
complaints having been lodged against him) that he was disruptive
to the school’s operations.

Finally, it cannot be said that Kurland's stated
justifications were insufficient to warrant the discipline that
was ultimately applied. In light of Brogan's repeated
misconduct, the modest suspensions imposed were a minimalist
response on the part of Kurland--and ultimately, of the Board.

In sum, Brogan fails utterly in his effort to show that the
reasons for the first disciplinary action were pretextual, so
that his claim against Kurland based on that action fails as a
matter of law. And Brogan’s claims based on the later
disciplinary actions not only rely heavily on the purportedly
(but not actually) pretextual nature of the first but also have
even less substantive support than the first failed attempt.
Thus any claims against Kurland relating to those disciplinary
actions also fail.

Constructive Discharge

Brogan also attempts to support his retaliation claim by

urging that he was constructively discharged. To prove a claim

15