hearing as evidence of retaliation in this proceeding. When Defendants previously moved to
dismiss all of the Plaintiffs' claims on preemption grounds, District Judge Guzman denied the
motion and ruled that, "the IELRA has been held to be preemptive in its focal area and the
Illinois Labor Relations Board has exclusive jurisdiction over the same focal area, labor
disputes." Andrekus, 2003 WL 1475033, at *3. In seeking to exclude this one incident,
Defendants now present a more focused and more compelling preemption argument. However,
this Court finds that, while the May 13, 2002 grievance hearing might properly be categorized as
a labor dispute and Hain and McFarlin's presence at the hearing might not have been a violation
of the Union Contract, the fact that the incident occurred at all is relevant to the Plaintiffs' overall
retaliation claim. Thus, without passing judgment on the appropriateness of the Defendants’

actions, the Court takes note of Hain and McFarlin's presence at the grievance hearing.

v. Remaining Evidence

Plaintiffs' remaining evidence may constitute adverse employment action. An adverse
employment action is any action taken under color of law that might chill an employee's speech
on matters of public concern. Power, 226 F.3d at 820; DeGuiseppe, 68 F.3d at 192. Proof of an
adverse employment action requires only a minimal evidentiary showing by the plaintiff. Power,
226 F.3d at 820.

The Plaintiffs' remaining complaints concern actions that the Defendants were legally
permitted to take. When viewed as a whole, however, the Defendants’ removal of Plaintiffs as
case managers without notice, scheduling of Plaintiffs for the maximum number of observations

permitted under their contract, failure to obtain substitute teachers, failure to record disciplinary

-19-



VanZuidam presents no evidence suggesting that she exercised her right to free speech, so the
Court finds that she cannot establish that Defendants violated her First Amendment rights by

retaliating against her.

b. Adverse Employment Actions
In their Complaint, the Plaintiffs accuse the Defendants of orchestrating a campaign of
retaliation and harassment which included:
° assigning Plaintiffs to two consecutive lunch supervisory periods

when no other teacher in the High School had more than one;

. soliciting students to spy on the Plaintiffs and write reports to
Hain and/or McFarlin;
. hiring a non-certified substitute teacher to teach Plaintiffs' special

education classes while Plaintiffs were assigned three supervisory
periods;

. failing to obtain substitute teachers and falsely accusing Plaintiffs
of failing to give the school proper notice of their absences;

. failing to properly record all of the student disciplinary referrals
written by Plaintiffs;

. failing to honor Plaintiffs' grievances rights as guaranteed by the
Union Contract, namely allowing Hain and McFarlin to attend a
level III Grievance Hearing on May 13, 2002;

° making untrue disparaging remarks about Plaintiffs to other faculty

-13-



lela ce | '

VanZuidam admit that parents complained about their classroom teaching and that administrators
had concerns about their teaching performances, which explains why the two were tentatively
scheduled for the maximum number of classroom observations. (Id. {{ 85-86.) This explanation
for the classroom observations is supported by the fact that the Defendants ultimately chose not
to observe VanZuidam at all during the 2002-2003 school year because she was teaching the
CAPSE course for the first time and the Defendants felt she needed more time to acclimate to her
new position. (Id. J 87.)

The Defendants explain their failure to obtain substitutes and to give the traditional
(though not required) ten days advance notice of IEP meetings. Andrekus admits that at least one
of the two or three IEP meetings she missed was an emergency meeting and advance notice was
not possible. (Id. | 66.) On two of the occasions when Andrekus needed a substitute because of
an IEP meeting the school had Andrekus's teaching assistant run the class. (Id. 460.) And when
Andrekus could not attend an IEP meeting she was permitted to send down her reports and was
not reprimanded. (Id. § 59, 69-70.)

While there are one or two unexplained incidents when substitute teachers were not
provided, the Plaintiffs admit that 2001-2002 was a transition time for Streamwood's special
education program. Plaintiffs admit that, as a result of the court decision Corey H. v. Bd. of
Educ. of Chicago, the manner in which special education students receive classroom instruction
in Illinois was altered. (Id. 26.) Because of the changes required under Corey H. v. Bd. of
Educ. of Chicago, class sizes and teaching schedules in Streamwood's special education program
were modified, (Id. 27.) Additionally, the Streamwood High School was scheduled to undergo

renovation and construction during the 2001-2002 school year. (Id. | 29.) Plaintiffs admit that

-23-


In addition to changing schedules and classroom assignments, in the Fall of 2001,
Streamwood's Special Education Department hired a new dean, Diane McFarlin. McFarlin's
responsibilities included implementing student discipline when students misbehaved and setting
certain policies for the Special Education Department. In one of her first decisions as dean, on
September 5, 2001, McFarlin issued a memo to Andrekus and VanZuidam placing special
education teachers’ off-campus activities on hold until further notice. On October 9, 2001,
McFarlin notified special education teachers that they could resume their field trips.

On September 26, 2001, Andrekus sent a letter to the Illinois State Board of Education
("ISBE"). The September 26, 2001 letter purported to speak on behalf of all Emotional
Disturbance/Behayioral Disorder ("ED/BD") staff and students and alleged that Streamwood
High School was deliberately not complying with state guidelines limiting special education class
sizes. The letter also described the difficulties that students and teachers were having due to the
Department's new schedules, room assignments and policies. On the signature line of that letter
Andrekus wrote "The Special Education Teachers at SHS" and then listed nine teachers by name
whom the ISBE could contact if it had further questions. The list of nine teachers included
Andrekus and VanZuidam. Andrekus did not obtain permission from Streamwood's special
education teachers to attribute the letter to them nor did she present the letter to the teachers
before forwarding it to the ISBE. When the other special education teachers learned of
Andrekus's actions they sent a retraction letter to the ISBE stating that they had not authorized
the use of their names on the September 26, 2001 letter. The retraction letter was signed by all of

the teachers listed by name on the September 26, 2001 letter, except for Andrekus and

VanZuidam.



referrals, and presence at Plaintiffs' grievance hearing, could constitute adverse action. Without
violating the Union Contract, the Defendants may have undermined Andrekus's ability to work
effectively and control her classroom, and, in so doing, Defendants may have chilled free speech
at the Streamwood High School. See id. at 821 (petty campaign of harassment and minor forms
of retaliation can be actionable under the First Amendment), Drawing all reasonable inferences

in favor of the nonmoving party, Andrekus presents evidence of adverse employment actions.

c Causal Connection

The Plaintiffs must establish a causal connection between the protected speech and the
adverse employment actions. Spiegla, 371 F.3d at 935. Plaintiffs have produced no evidence
connecting any action by the Defendants to the ISBE letter or VanZuidam's telephone
conversation with Donna Schertz. Rather, Plaintiffs rely entirely on timing to establish a
connection between their protected speech and the adverse employment actions that followed.

In Title VII discrimination suits, suspicious timing does constitute circumstantial, or
indirect, evidence to support a claim. Hunt-Golliday y. Metro. Water Reclamation Dist. of
Greater Chicago, 104 F.3d 1004, 1014 (7th Cir. 1997); Lalvani v. Cook County, 269 F.3d 785,
790 (7th Cir. 2001). In this case, however, the timing alone is not sufficient to establish
retaliation. There is nothing suspicious about the timing of Defendants' occasional failure to
obtain substitutes, failure to give extra notice of IEP meetings, or modification of VanZuidam's
2002-2003 schedule. Plaintiffs themselves argue that Streamwood's Special Education

Department had serious department-wide problems in the areas of substitute teachers, class

-20-



unsuccessful First Amendment retaliation claim. In Vukadinovich y. Bartels, 853 F.2d 1387,
1391-92 (7th Cir. 1988), the Seventh Circuit dismissed a teacher's Equal Protection claim when it
found that, "plaintiff is not claiming he was classified on the basis of some forbidden
characteristic, only that he was treated differently because he exercised his right to free speech."
The Seventh Circuit considered the Equal Protection claim to be inappropriate as it was "a mere
rewording of plaintiff's First Amendment-retaliation claim." Id. at 1392. In our case, the
Plaintiffs’ Response to Defendants’ Motion for Summary Judgment promotes the Plaintiffs' Equal
Protection claim with the statement, "There can be no question that a fair reading of the
Complaint demonstrates that plaintiffs' claim is that the defendants joined together treated them
unequally because of their protected speech." (Pls.’ Resp. Defs.' Mot. Summ. J. at 13). The
Court agrees with the Plaintiffs’ characterization of their Equal Protection claim. Like the
Seventh Circuit in Vukadinovich, this Court finds that the Plaintiffs’ Equal Protection claim isa
mere rewording of their First Amendment retaliation claim.

Because Plaintiffs have not produced sufficient evidence to support their Equal Protection
claim and because the claim is merely a rewording of their failed First Amendment retaliation
claim, summary judgment is granted in favor of Defendants on Count II.

Having drawn all inferences in a light most favorable to the Plaintiffs, the Court finds that
there are no genuine issues as to any material facts and that Plaintiffs cannot show a First

_ Amendment retaliation violation nor an Equal Protection violation. Accordingly, the Court
grants Defendants’ Motion for Summary Judgment on both Counts I and II and does not reach

Defendants’ other arguments for summary judgment.

-26-



evidence to support that assertion. Furthermore, Plaintiffs admit that they filed additional
grievances in February and April of 2002 and offer no evidence that the administrators's presence
at the meeting was related to the ISBE letter written eight months earlier. And finally, the
Plaintiffs admit that the IELRB dismissed their unfair labor practice charge, which included the
May 13, 2002, incident, for lack of evidence. (Id. | 79.)

Plaintiffs fail to present any evidence that their protected speech motivated the
Defendants to take adverse employment actions against them. The Plaintiffs rely entirely on
timing but fail to address the numerous reasons why the timing in this case is unremarkable.

Because there is no genuine issue of material fact, summary judgment is appropriate.

3. Defendants' Actions Not Motivated by Protected Conduct

If the Plaintiffs had carried their burden and established that they were retaliated against
because of their protected speech, Defendants would still be entitled to summary judgment
because they can show that their actions were not motivated by the Plaintiffs’ protected speech.
See Spiegla, 371 F.3d at 935.

Defendants have legitimate explanations for removing Andrekus as a case manager and
assigning Plaintiffs the maximum number of classroom observations. Andrekus admits that
parents complained about her. (Defs.' L.R. 56.1 Statement § 85.) One parent demanded that
Andrekus be removed and a new case manager assigned to her son. Defendants immediately
complied with this demand, which explains the lack of notice when Andrekus was removed as a
case manager. (Id. 67.) Two other parents requested male case managers for their sons, so

Andrekus was removed from those assignments as well. (Id. | 63.) Both Andrekus and

-22-



students in her log. This evidence connects the protected speech at the beginning of the
2001-2002 school year (i.e., the ISBE letter) with events at the end of the 2001-2002 school year
(ie., the level III grievance hearing in May 2002 and the preliminary 2002-2003 school year
schedule). Because there are no significant, unexplained gaps in this case, evidence of retaliation

after May 1, 2002, is relevant to Plaintiffs’ claims.

iii. | Hearsay

Only evidence that is admissible at trial may be considered at summary judgment. See
Scott, 346 F.3d at 759-60 n. 7. Hearsay evidence that is inadmissible at trial, therefore, is also
inadmissible at summary judgment. Eisenstadt v. Centel Corp., 113 F.3d 738, 742 (7th Cir.
1997). However, because summary judgment is not the actual trial itself, evidence that is hearsay
in form but not in content, e.g., a sworn affidavit from a witness who is prepared to give
otherwise admissible testimony at trial, is admissible at summary judgment. Fed. R. Civ. P.
56(e); Eisenstadt, 113 F.3d at 742.

Plaintiffs rely on inadmissible hearsay when they accuse the Defendants of soliciting
student spies and making disparaging remarks about the Plaintiffs. First, Plaintiffs rely on a
handwritten note by a student to show that he was solicited by McFarlin to spy on Andrekus.
The note is hearsay as it is offered for the truth of the matter asserted, Fed. R. Evid. 801(c).
Because the declarant is alive and available to testify, and because none of the exceptions under
Fed. R. Evid. 803 apply, the note is only admissible at trial if it falls under the Fed. R. Evid. 807
residual exception. Rule 807 requires that the note (1) has circumstantial guarantees of

trustworthiness equivalent to the other hearsay exceptions; (2) is offered as evidence of a material

-17-



To be constitutionally protected, a public employee's speech must be a matter of public
concern. See Connick, 461 U.S. at 147-48. Whether a matter is of public concern depends on
the content, form and context of a given statement. Jd.; Belk v. Town of Minocqua, 858 F.2d
1258, 1264 (7th Cir. 1988). A statement is of public concern when it relates to a matter of
political, social or other concern to the community, rather than merely a personal grievance of
interest only to the employee. Gustafson v. Jones, 290 F.3d 895, 907 (7th Cir. 2002). Thus, a
speaker's motive "may play some part in determining whether the speech is of public concern
because speech that promotes a purely private interest is not protected." Marshall v, Porter
County Plan Comm'n, 32 F.3d 1215, 1219 (7th Cir. 1994); Colburn y. Trs. of Indiana Univ., 973
F.2d 581, 586-87 (7th Cir. 1992). Motive, however, is not assessed in a vacuum. Courts
recognize that people often speak out for personal reasons and that speech may be of public
concern even where the speaker stands to gain a personal benefit in addition to bringing the
wrongdoing to light. See Belk, 858 F.2d at 1264; duriemma y. Rice, 910 F.2d 1449, 1460 (7th
Cir. 1990).

The ISBE letter was more than "a disgruntled employee's complaint regarding [a] .. .
previously resolved scheduling grievance." (Defs.' Mem. Supp. Mot. Summ. J. at 5.) The ISBE
letter does recount individual scheduling grievances that existed at the beginning of the
2001-2002 school year. However, the letter also alleges that Streamwood was not complying
with state guidelines limiting special education class sizes, describes the difficulty of teaching
and learning in classrooms with too many or too few students, and draws attention to student
complaints about not grasping class material due to insufficient access to teachers. In Cliff. Bd.

of Sch. Comm'rs of Indianapolis, 42 F.3d 403, 410-11 (7th Cir. 1994), a teacher's letter

-9-


start of the 2002-2003 school year, VanZuidam was assigned to teach the Computer Application
Programs for Special Education Students ("CAPSE") course.

Upset with the Streamwood High School and Special Education Department, the
Plaintiffs filed grievances in February and April of 2002. In accordance with their Union
Contract, a level II grievance hearing was scheduled before the Board of Education for May 13,
2002. Against the Plaintiffs’ protestations, the Board of Education allowed Defendants Hain and
McFarlin to attend the grievance hearing. On June 4, 2002, the Plaintiffs filed their five-count
Complaint against the Defendants. On September 24, 2002, the Plaintiffs filed an unfair labor
practice charge with the Illinois Educational Labor Relations Board ("IELRB") objecting, among
other things, to the Board of Education's conduct at the May 13, 2002 grievance hearing.

On March 20, 2003, District Judge Guzman dismissed Counts III, IV and V of the
Plaintiffs' Complaint.’ On August 5, 2003, the IELRB dismissed the Plaintiffs’ unfair labor
practice charge for lack of evidence. (Id. 179.) Defendants now move this court to grant

summary judgment and dismiss Plaintiffs' remaining Counts I and II.

I. Discussion
Defendants filed a Motion for Summary Judgment claiming that there are no genuine
issues of material fact regarding Plaintiffs’ Count | allegations of First Amendment retaliation or
Plaintiffs’ Count II allegations of Equal Protection violations.
Summary judgment is appropriate when the record shows "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."

| Andrekus v. Bd. of Educ., No. 02 C 3960, 2003 WL 1475033 (N.D. Ill. Mar. 20, 2003).

-6-



AEE Eee a

After learning about the retraction letter, Andrekus sent a second letter to the ISBE on
October 2, 2001 (“ISBE letter"). The October 2, 2001 letter was identical to the September 26,
2001 letter except that it was signed only by Andrekus. At some point after the ISBE letter was
sent, VanZuidam had a private telephone conversation with Donna Schertz, an employee of the
ISBE. Later in October 2001, the ISBE notified Defendant Smith that a complaint had been filed
and ultimately sent Defendants Smith and Edwards a copy of the ISBE letter, which contained
only Andrekus's signature. All ISBE correspondence received by Smith and Edwards subsequent
to the initial complaint referred to Andrekus and not VanZuidam. (Defs.' L.R. 56.1 Statement
453.)

The Plaintiffs allege that the Defendants systematically retaliated against them after they
learned of the complaints to the ISBE. On about three occasions during the 2001-2002 school
year substitute teachers were not retained to cover Andrekus's pre-approved absences or her
attendance at the individual education plan meetings ("IEP meetings") of students for whom she
was a case manager. On two or three other occasions, Andrekus did not receive the ten days
advance notice of an IEP meeting to which she believed she was entitled. On two occasions
Andrekus's teaching assistant taught her class while she attended an IEP meeting. Over the
course of the 2001-2002 school year, Andrekus was removed as case manager for three students
at their parents's request. Also that year, there were instances when McFarlin did not take final
disciplinary action when Andrekus and VanZuidam referred students for discipline. Andrekus
and VanZuidam were both scheduled to receive the maximum number of classroom observations

(three) permitted by their Union Contract in the 2002-2003 school year. And finally, before the



fact; (3) is more probative on the point for which it is offered than any other evidence which the
proponent can produce through reasonable efforts; and (4) serves the interests of justice. Fed. R.
Evid. 807; Eisenstadt, 113 F.3d at 743. Because the author of the note could easily sign an
affidavit or be deposed, the note fails this test. See Eisenstadt, 113 F.3d at 743 (finding
newspaper article to be inadmissible hearsay where plaintiffs did not obtain reporter's affidavit or
depose him). Similarly, Plaintifffs' reliance on their own deposition testimony to prove
statements made by McFarlin and Hain to other teachers fails this hearsay test. The Plaintiffs do
not have first hand knowledge of these statements so their testimony is hearsay. The Plaintiffs
could easily obtain affidavits from the teachers with first hand knowledge or depose them but
they chose not to.. Because neither the student's note nor the Plaintiffs’ testimony is admissible at
trial, and because the Plaintiffs never argue that it was not feasible to obtain better evidence, both
items are excluded at summary judgment. Accordingly, the Court will not consider Plaintiffs’
allegations of (1) soliciting students to spy on the Plaintiffs and write reports to Hain and/or
McFarlin; or (2) Hain and McFarlin made untrue disparaging remarks about Plaintiffs to other

faculty members and parents.

iv. Preemption

Defendants argue that, under the Illinois Educational Labor Relations Act ("IELRA"),
whether Hain and McFarlin's presence at the Plaintiffs’ May 13, 2002 grievance hearing
constitutes retaliation depends on the IELRB's interpretation of the Plaintiffs' Union Contract.
Because the IELRB dismissed the Plaintiffs’ unfair labor practice charge on August 5, 2003,

Defendants argue that the Plaintiffs are preempted from relying on their May 13, 2002 grievance

-18-



employees, courts use the Connick-Pickering test to determine if the speech is constitutionally
protected. Under the Connick-Pickering test the speech must be a matter of public concern and
the employee-citizen's interest in commenting on the matter must outweigh the
employer-government's interest in promoting effective and efficient public service. See Connick
v. Myers, 461 U.S. 138, 147-48 (1983); Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968);
Spiegla, 371 F.3d at 940. To establish that speech was a substantial or motivating factor in the
retaliatory action the plaintiff must show that the protected speech caused, or at least played a
substantial part in, the employer's decision to take adverse employment action against her.
Spiegla, 371 F.3d at 942. An adverse employment action is any action taken under color of law
that creates the potential for chilling an employee's speech on matters of public concern. Power
v. Summers, 226 F.3d 815, 820-21 (7th Cir. 2000); DeGuiseppe v. Vill. of Bellwood, 68 F.3d 187,
192 (7th Cir. 1995). While the adverse action need not be monstrous, it must be more than a
mere inconvenience and the employee must be made worse off by it. DeGuiseppe, 68 F.3d at
192. Finally, even if the plaintiff satisfies her two-part test, the defendant must have the
opportunity to show that she would have taken the same actions even in the absence of the
protected speech. See Spiegla, 371 F.3d at 935; Sandoval v. Calumet Pub. Sch. Dist. No. 132,

2004 WL 1588276, at *10 (N.D. Ill. July 15, 2004).

1. Speech Must Be A Matter of Public Concern

The Defendants argue that the ISBE letter upon which Plaintiffs base their First
Amendment retaliation claim is not constitutionally protected speech because it represents the

private grievances of an individual employee and is not a matter of public concern.

-8-



teachers were required to shift their schedules to accommodate these changes. And Plaintiffs
admit that they were never punished, disciplined, or docked pay when scheduling errors occurred
with substitute teachers. (Id. JJ 59, 70.) This suggests that Plaintiffs were not held responsible
or punished for the Special Education Department's shortcomings.

Defendants offer reasonable explanations for all of the actions taken, with the notable
exception of the May 13, 2002 grievance hearing. However, the Plaintiffs have not presented
any evidence that would lead this Court to find that the Defendants' presence at the grievance
hearing constituted retaliation for the ISBE letter nor even that Defendants’ presence at the
grievance hearing prejudiced Plaintiffs in any meaningful way. Because Defendants have carried
their burden and Plaintiffs have not, summary judgment is granted in favor of Defendants on

Count I.

B. Count II

In Count II of their Complaint, the Plaintiffs allege Equal Protection violations under the
Fourteenth Amendment and 42 U.S.C. § 1983 and claim that the Defendants treated them
differently from similarly situated teachers in the district. Plaintiffs bring their Equal Protection
claim as a "class of one." See Vill. of Willowbrook v. Olech, 528 U.S. 562, 564 (2000). Under
this theory, a plaintiff can show an Equal Protection violation where she has been intentionally
and vindictively treated differently from other similarly situated individuals and there is no
rational basis for the different treatment. Jd.

In their Response to Defendants' Motion for Summary Judgment, Plaintiffs contend:

"In the case at bar, plaintiffs have shown that:

-24-


+ Minute Ord2 Form (06/97)

Sal United States District Court, Northern District of Minois
it

Name of Assigned Judge Martin C. Ashman Sitting Judge if Other
or Magistrate Judge than Assigned Judge
CASE NUMBER 02 C 3960 DATE 9/27/2004
-
CASE Debbie Andrekus, et al. vs. Board of Education of District U-46, 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:
DOCKET ENTRY:
(ly a) Filed motion of { use listing in “Motion” box above.]
(2) a Brief in support of motion due
(3) a Answer brief to motion due___. Reply to answer briefdue____.
(4) i) Ruling/Hearing on___setfor___at
(5) oO Status hearing[held/continued to] [set for/re-set for]on____setfor___at
(6) Oo Pretrial conference[held/continued to] [set for/re-set for}on__setfor__—sat__—
(7) a} Trial{set for/re-set for}on_ at.
(8) Oo [Bench/Jury trial] [Hearing] held/continuedto__—_—aat
(9) Qa This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OOFRCP4(m) CLocal Rule 41.1 OFRCP41(a)(1) OO FRCP41(a)(2).
ao) oi [Other docket entry] | Enter memorandum opinion and order. Defendants’ motion for summary

judgment [22-1] is granted and defendants’ motion in limine [27-1] is denied.

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

No notices required, advised in open court.
2

No notices required. ber of not
umber of notices

o | Notices mailed by judge’s staff. SEP 28 2004

Notified counsel by telephone.

date docketed

Docketing to mail notices.

¥ | Mail AO 450 form.

Copy to judge/magistrate judge.

9/27/2004

courtroom date mailed notice

Is deputy’s
initials

Dateline received in}

céntral: Clerk's Office” mailing deputy initials



a. VanZuidam

As an initial matter, the Defendants assert that VanZuidam's claims must fail because
they did not even know that she had exercised her right to free speech. "Allegedly protected
speech cannot be proven to motivate retaliation, if there is no evidence that the defendants knew
of the protected speech." Stagman y. Ryan, 176 F.3d 986, 999-1000 (7th Cir. 1999) (internal
quotations omitted), VanZuidam bases her First Amendment and Equal Protection claims on the
October 2, 2001 ISBE letter and on a telephone conversation that she had with Donna Schertz
shortly thereafter. (Defs.'’ L.R. 56.1 Statement J 50-51.) VanZuidam admits, however, that only
Andrekus's name appears on the ISBE letter and it was a copy of that letter that was forwarded to
Defendants Edwards and Smith. (id. §{] 50, 52-53.) VanZuidam admits that all of the ISBE
correspondence received by Edwards and Smith subsequent to the initial complaint referred to
Andrekus, not VanZuidam. (Id. 53.) And VanZuidam also admits that her telephone
conversation with Donna Schertz was made from her home and was not discussed with the
Defendants. (Id. 51.) Thus, VanZuidam has no evidence that Defendants knew of any exercise

of free speech by her?

? In denying Defendants' motion to dismiss VanZuidam's claims, District Judge Guzman
looked to the ISBE letter as well as VanZuidam's actions prior to the letter. See Andrekus, 2003
WL 1475033, at.*4. VanZuidam clearly exercised her right to free speech prior to the ISBE
letter, but, by failing to respond to Defendants' L.R. 56.1 Statement, VanZuidam admitted that
she bases her claims on the ISBE letter and the telephone conversation with Schertz and excluded
earlier.incidents. Accordingly, VanZuidam stands in a very different place today than she did
when Defendants previously moved to dismiss her claim. See Conley v. Gibson, 355 U.S. 41,
45-46 (1957) (only grant motion to dismiss when it appears beyond a doubt that plaintiff can
prove no set of facts to support the allegations in her claim); Thompson vy. Illinois Dep't of Prof
Regulation, 300 F.3d 750, 753 (7th Cir. 2002) (at motion to dismiss, ambiguities in complaint
must be construed in favor of plaintiff).

-11-


complaining about class sizes and student discipline was dismissed as a personal grievance and
not of public concern because the teacher did not purport to speak for other teachers and it was
clear that she was merely responding to complaints about her ability to control her own
classroom. Unlike Cliff; Andrekus did purport to speak for the entire Special Education
Department and she did not limit her discussion to her own grievances. The ISBE letter may
have been motivated by Andrekus's displeasure with her new schedule but it explicitly addresses
institutional failings at Streamwood and describes the frustrations of staff and students. Because
the content of the ISBE letter was clearly of concern to the Streamwood community, the Court
finds that the ISBE letter is a matter of public concern.

The Defendants do not claim that the government's interest in maintaining efficient and
effective operations outweighs the Plaintiffs' interest in commenting on the subject matter in the
ISBE letter and the Court finds that it does not. Accordingly, the speech upon which the
Plaintiffs base their First Amendment retaliation claim and their Equal Protection claim is

constitutionally protected speech.

2. Speech Must Be Substantial or Motivating Factor in
the Retaliatory Action

The Defendants claim that the Plaintiffs cannot establish that their protected speech
caused, or at least played a substantial part in, the Defendants’ decision to take adverse

employment action against them.

-10-



Fed. R. Civ. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Sinkler v.
Midwest Prop. Mgmt., Ltd., 209 F.3d 678, 683 (7th Cir. 2000). In determining whether summary
judgment is appropriate, the Court must view the evidence, and draw all reasonable inferences
therefrom, in the light most favorable to the nonmoving party. See Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 255 (1986); Kennedy v. United States, 965 F.2d 413, 417 (7th Cir. 1992).
However, if the nonmovant bears the burden of proof on an issue she may not simply rest on the
pleadings, but rather must affirmatively set forth specific facts establishing the existence of a
genuine issue of material fact. See Celotex, 477 U.S. at 322-26,

Summary judgment is appropriate when the nonmoving party "fails to make a showing
sufficient to establish the existence of an element essential to that party's case, and on which that
party will bear the burden of proof at trial." /d. at 322. If taking the record in its entirety cannot
lead a rational trier of fact to find for the nonmoving party, then there is no genuine issue for trial
and summary judgment must be granted. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475

U.S. 574, 587 (1986).

A. Count I - First Amendment Retaliation

In Count I of their Complaint, Plaintiffs allege that Defendants violated their First
Amendment rights when Defendants retaliated against them for sending the ISBE letter
complaining about conditions in Streamwood High School's special education program. A
plaintiff alleging retaliation under 42 U.S.C. § 1983 and the First Amendment must show that her
speech was (1) constitutionally protected and (2) a substantial or motivating factor in the

retaliatory action. Spiegla v. Hull, 371 F.3d 928, 935 (7th Cir. 2004). In the case of public

-7-



scheduling and class sizes. In June 2001, upset about scheduling and school policies, the
Plaintiffs initiated a union grievance regarding scheduling and staffing changes, and challenged
their Fall 2001 schedules. That grievance was resolved in their favor in August 2001, a month
before the ISBE letter. Plaintiffs continued to complain about schedules and class sizes
throughout August and September 2001. In fact, Andrekus describes several of these incidents in
the ISBE letter itself. That these problems persisted into the 2001-2002 school year and
adversely impacted the Plaintiffs is not suspicious and does not suggest a causal connection to
the ISBE letter.

There is nothing suspicious about scheduling the Plaintiffs for increased numbers of
classroom observations or removing Plaintiffs as case managers. Plaintiffs claim that they had
always received positive performance evaluations prior to the ISBE letter, but admit that several
parents complained about them in the 2001-2002 school year, including specific demands to
remove Andrekus as case manager. (Defs.' L.R. 56.1 Statement ff 67, 85-86.) Parents's
complaints are not actions taken by the Defendants and do not suggest a causal connection. And
the fact that lower performance evaluations coincided with parent complaints about classroom.
teaching is not suspicious.

So, Plaintiffs are essentially left with two complaints: that their referrals for discipline
were not recorded by McFarlin and that their rights were violated by Hain and McFarlin at the
May 13, 2002 grievance hearing. Plaintiffs admit that McFarlin had discretion under state law
not to record referrals and that she chose not to record them on several occasions with several
different teachers. (Id. ff] 42, 71-74.) Plaintiffs allege that prior to May 13, 2002, school

administrators had never been allowed to attend a level III grievance hearing, but offer no

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Cc. Motion in Limine
Since the Court has relied on admissible facts only in this decision, Defendants' Motion in
Limine to Bar Evidence of Alleged Retaliation Before September 26, 2001 and After May 1,

2002, is now moot and it is therefore denied for mootness.

TIL. Conclusion
For the foregoing reasons, Defendants' Motion for Summary Judgment is granted and

Defendants' Motion in Limine is denied.

= C. Ce we

Dated: September 27, 2004. United States Magistrate Judge

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by the Elgin Teachers Association ("Union"). The Union is party to a collective bargaining
agreement ("Union Contract") which sets forth the terms and conditions of employment for
teachers, including the terms for teacher evaluations and the resolution of disputes arising out of
the Union Contract. Among other things, the Union Contract permits administrators to schedule
up to three classroom observations during a tenured teacher's evaluation and provides that
disputes over alleged Union Contract violations shall be resolved through a four-step grievance
procedure that culminates in arbitration.

In May 2001, Streamwood High School's special education teachers were required to
adjust their schedules in response to changes in special education required by Corey H. v. Bd. of
Educ. of Chicago, 995 F. Supp. 900 (N.D. Ill. 1998) (altering the manner in which special
education students in Illinois receive classroom instruction) and to accommodate construction
and remodeling at the high school. Prior to the 2001-2002 schoo! year, both Plaintiffs taught five
classes from 7:30 a.m. to 12:10 p.m. with the remainder of their days allocated to lunch,
supervision, and planning periods. The new schedule, to take effect in the 2001-2002 school
year, required the Plaintiffs to teach five academic subjects throughout the day plus one
supervisory period, one planning period, and one lunch period. Andrekus and VanZuidam
believed that the Fall 2001 schedules violated their Union Contract and on June 1, 2001, they
initiated a Union grievance challenging the schedules. On August 23, 2001, the School District
agreed to reduce Andrekus's and VanZuidam's assignments to three classes and two supervision
periods each. As a result of this resolution, the Defendants were required to retain a teacher to

fill in for the classes Andrekus and VanZuidam no longer taught.



members and parents;
. cancelling previously approved class field trips that were a part of

students! IEP and/or behavior management plans at the last moment

without notice;

. unilaterally removing Plaintiffs as special education case managers
without notice;

. failing to notify Plaintiffs of IEP meetings until the last moment

thereby depriving Plaintiffs of opportunity to adequately prepare
for meetings.
The Plaintiffs also complain that VanZuidam was forced to teach the CAPSE course in the
2002-2003 school year and that Andrekus and VanZuidam were both scheduled for three
classroom observations for the 2002-2003 school year.
Not all of the Plaintiffs' allegations are relevant to their First Amendment and Equal

Protection claims.

i. Actions taken before September 26, 2001

Evidence which predates September 26, 2001, is irrelevant to the Plaintiffs’ allegations of
retaliation and unequal treatment because the Plaintiffs’ constitutionally protected speech
occurred on, or later than, September 26, 2001.

To establish First Amendment retaliation, a plaintiff must show that she engaged in
constitutionally protected speech and that that speech was a substantial or motivating factor in

the defendant's retaliatory action. Spiegla, 371 F.3d at 935. By definition, the defendant's

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attend the Plaintiffs' level III grievance hearing on May 13, 2002; (2) Defendant Hain scheduled
three classroom observations of Plaintiffs during the 2002-2003 school year; and (3) Defendants
assigned VanZuidam to teach the CAPSE course during the 2002-2003 school year.

When analyzing a retaliation claim, the Seventh Circuit finds that sufficient passage of
time may destroy an inference of causation. Defendants seek to apply this rule to our case and
cite to Wallscetti v. Fox, 258 F.3d 662 (7th Cir. 2001), Filipovic v. K & R Express Sys., Inc., 176
F.3d 390 (7th Cir. 1999), and Hughes v. Derwinski, 967 F.2d 1168 (7th Cir. 1992). In the cited
cases, the Seventh Circuit found that a four month gap between protected speech and an adverse
employment action "without more" is too long to support a reasonable inference of causation.
Waliscetti, 258 F.3d at 669. See also Filipovic 176 F.3d at 398-99 (without more evidence of
retaliation, four months between complaint to EEOC and termination from job is too much time
to show causation); Hughes, 976 F.2d at 1174 (disciplinary letter received four months after
filing sex discrimination claims against employer does not sufficiently raise inference of
causation). Unlike the plaintiffs in Wallscetti, Filipovic, and Hughes, Andrekus and VanZuidam
base their claims on alleged retaliatory actions taken throughout the 2001-2002 school year. The
record contains evidence suggesting that: (1) in October 2001 Andrekus was removed as case
manager for two students, (2) on at least two or three occasions during the 2001-2002 school year
Andrekus did not receive advance notice of an IEP meeting; (3) about three times during the
2001-2002 school year substitute teachers were not retained to cover Andrekus's pre-approved
absences; (4) twice during the year a substitute was not obtained for Andrekus while she left her
class and her lunch/supervision period to attend special education IEP meetings; and (5) on

several occasions Andrekus recommended students for discipline but McFarlin did not list the

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oe aad aR RE ’

Material Facts so the Court deems Defendants' entire L-R. 56.1 Statement to be admitted by the
Plaintiffs. L-R. 56.1(b)(3)(B). See also Midwest Imports, Ltd. v. Coval, 71 F.3d 1311, 1316 (7th
Cir. 1995) (opposing party cannot simply raise additional facts in its brief if those facts are not in

its 56.1(b)(3)(B) statement).

I. Background

Plaintiffs Debbie Andrekus and Deborah VanZuidam, at the time of filing, were both
certified, tenured teachers employed at Streamwood High School, in the Village of Streamwood,
Cook County, Illinois by School District U-46. The District is organized and operated pursuant
to the Illinois School Code and as such the Board of Education was charged with the duty of
running the District pursuant to the Illinois School Code. On June 4, 2002, Plaintiffs filed their
Complaint against Defendants; Marvin Edwards, Superintendent of the District, Richard Majka,
Assistant Superintendent of the District, Maria Smith, Director of Special Education for District
U-46, Ron Kalicki, Principal of Streamwood High School, Robert Hain, Special Education
Supervisor for Streamwood High School, Diane McFarlin, Dean of Streamwood's Special
Education Department, and the Board of Education.

At all pertinent times, Andrekus was a special education teacher whose duties included
classroom instruction for Behavior Disorder ("BD") students in a self-contained classroom and
acting as a case manager for up to thirteen BD students. During the 2001-2002 school year,
VanZuidam was assigned to teach Educable Mentally Handicapped (EMH) students in a self-
contained classroom and served as a case manager for up to fifteen EMH students. At all

pertinent times, Andrekus and VanZuidam were represented for purposes of collective bargaining

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. They were the only teachers assigned multiple supervision periods;
. They were the only tenured teachers that were informed that they
were going to be evaluated more than once per year,
. They were the only teachers who had extraneous personnel at a
step III grievance hearing;
° They were the only teachers who requested substitute teachers
that were not assigned.”
(Pls.' Resp. Defs.' Mot. Summ. J. at 13.) This statement is remarkable because the Plaintiffs have
not shown any of these things. Instead of producing their own evidence to support their Equal
Protection claim, the Plaintiffs rely entirely on the Defendants’ L.R. 56.1 Statement, which does
not contain any evidence of different treatment of similarly situated teachers or irrational decision
making by the Defendants. To the contrary, the Defendants' L.R. 56.1 Statement gives examples
of other teachers being treated in a similar manner as the Plaintiffs (being removed from case
manager assignments, (id. § 64), and several occasions on which McFarlin failed to record
students referred for discipline (id. {| 72-74)) and offers rational explanations for the Defendants'
actions (Plaintiffs were given a unique schedule in the Fall of 2001 because they won their union
grievance, (id. § 39), and were scheduled for an increased number of classroom observations
because there were many complaints and concerns about their teaching methods (id. 4] 85-86)).
It follows that the Plaintiffs cannot show that they have been treated differently from other
similarly situated teachers nor can they show that the Defendants’ actions were irrational.
Not only do the Plaintiffs fail to produce evidence supporting their Equal Protection

claim, but the claim itself is essentially a repackaging and rearguing of the Plaintiffs’

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

EASTERN DIVISION
DEBBIE ANDREKUS and DEBORAH
VANZUIDAM,
Plaintiffs, Case No. 02 C 3960
v. Magistrate Judge

Martin C. Ashman
BOARD OF EDUCATION OF DISTRICT
U-46, et al.,

eee SSS SS

Defendants.

MEMORANDUM OPINION AND ORDER

Plaintiffs Debbie Andrekus and Deborah VanZuidam filed a five-count complaint against
Defendants Board of Education District U-46, Marvin Edwards, Richard P. Majka, Maria Smith,
Ron Kalicki, Robert Hain and Diane McFarlin. Counts III, IV, and V of Plaintiffs! Complaint
were previously dismissed and Defendants now move this Court, pursuant to Rule 56 of the
Federal Rules of Civil Procedure, to grant summary judgment and dismiss Plaintiffs' Counts I
and II. This case is properly before this Court as Count I of Plaintiffs’ Complaint alleges a First
Amendment violation under 42 U.S.C. § 1983, Count II alleges an Equal Protection violation
under 42 U.S.C. § 1983, and both parties consent to have this Court conduct any and all
proceedings in this case, including the entry of final judgment. See 28 U.S.C. § 636(c); Local
R. 73.1(a).

The Defendants complied with Local Rule 56.1 and submitted a Local Rule 56.1
Statement of Undisputed Material Facts ("L.R. 56.1 Statement") in support of their Motion for

Summary Judgment. The Plaintiffs did not file a Local Rule 56.1 Statement of Undisputed



Copies have been mailed to:

STEVEN E. GLINK, Esq.
Law Office of Steven E. Glink
3338 Commercial Avenue
Northbrook, IL 60062

Attorney for Plaintiffs

PATRICIA J. WHITTEN, Esq.
ERIKA DILLON, Esq.

JULIE E. HEUBERGER, Esq.
Franezek Sullivan, P.C.

300 South Wacker Drive

Suite 3400

Chicago, IL 60606

Attorneys for Defendants


At summary judgment, a plaintiff may no longer simply rest on her pleadings.
VanZuidam does precisely that in her Response to Defendants’ Motion for Summary Judgment?
The Plaintiffs allege numerous times that VanZuidam co-authored the ISBE letter but they
present no evidence of that collaboration. VanZuidam did not sign the ISBE letter, nor is her
name even mentioned in the letter. The Plaintiffs claim that VanZuidam is easily identifiable by
the content of the letter but, as noted above, the ISBE letter purports to speak on behalf of all
ED/BD and special education staff and students and, in that context, any specific incidents
involving VanZuidam can only be viewed as one item in a laundry list of department-wide
grievances. Furthermore, the fact that VanZuidam did not sign her name to the special education
teachers’ retraction letter is not proof of authorship of the ISBE letter, nor does that fact provide
any notice to Defendants of her authorship. Assuming that the Defendants even saw or compared
both the ISBE letter and the teachers’ retraction letter, VanZuidam's decision not to oppose
Andrekus's letter could be interpreted as indifference to the letter writing campaigns. But even if
VanZuidam's decision not to oppose Andrekus was interpreted as support for Andrekus's
complaints, merely supporting someone who exercises her freedom of speech is not the same as
exercising one's own rights.

The issue before the Court is not whether the Defendants had reason to believe that
VanZuidam shared Andrekus's displeasure with school policies. The issue before the Court is

whether VanZuidam was targeted because she exercised her First Amendment rights.

> Page four of Plaintiffs’ Response to Defendants’ Motion for Summary Judgment reads,
"Plaintiffs' complaint alleges that both plaintiffs made numerous complaints to the administration
prior to the letter (#13). The complaint also alleges that Andrekus wrote the letter on her and
VanZuidam's behalf. (#14). Defendants' Answer denied these allegations. That creates a
question of fact in and of itself." (Pls.' Resp. Defs.' Mot. Summ. J. at 4.)

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retaliatory actions must be in response to, i.e., follow, the plaintiff's exercise of her constitutional
rights, In this case, the earliest speech that either Plaintiff relies on in bringing her First
Amendment and Equal Protection claims is the ISBE letter sent on October 2, 2001, which was
identical in content (except for the attribution of authorship) to the September 26, 2001 ISBE
letter. (Defs.' L.R. 56.1 Statement 50.) Because neither Plaintiff bases her claims on protected
speech made before September 26, 2001, the Court finds that actions taken by the Defendants
before September 26, 2001, cannot constitute evidence of retaliation in this case. See

Fed. R. Evid. 402 (irrelevant evidence not admissible at trial); Scott v. Edinburg, 346, F.3d 752,
759-60 n. 7 (7th Cir. 2003) (evidence that is not admissible at trial is not admissible at summary
judgment). Specifically, the following allegations cannot be evidence of retaliation: (1) assigning
Plaintiffs to two consecutive lunch supervisory periods when no other teacher in the High School
had more than one (occurred on August 23, 2001); (2) cancelling previously approved class field
trips that were a part of students’ IEP and/or behavior management plans at the last moment
without notice (occurred on September 5, 2001); and (3) hiring a non-certified substitute teacher
to teach Plaintiffs’ special education classes while Plaintiffs were assigned three supervisory

periods (occurred in early September 2001).

ii. After May 1, 2002
Defendants argue that, as a matter of law, events occurring after May 1, 2002, cannot
support the Plaintiffs’ claims of retaliation because they are too far removed from the Plaintiffs’
protected speech. Specifically, Defendants move the Court to exclude evidence that: (1)

Defendants violated Plaintiffs’ rights under the Union Contract by allowing Hain and McFarlin to

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