with each driving it for one semester. The claimed proximity between her refusal to drive for
Crete and LaPorte’s announcement fuels Johnson’s claim that LaPorte retaliated against her for
her pro-union sentiments. Jd. at 47.!

The defendants contend that the decision to split the kindergarten routes had been
contemplated prior to Johnson’s refusal to drive for Crete. They say that on the moming of
August 23, before the meeting with the kindergarten drivers, LaPorte and Heldt met to discuss
the kindergarten routes. Heldt Dep. at 14; LaPorte Dep. at 20. Based on the driver preference
surveys, Heldt informed LaPorte that four drivers were interested in the kindergarten route. They
agreed that if the drivers determined that three kindergarten routes were necessary, they would
assign three drivers and one substitute. Heldt Dep. at 14-15; La Porte Dep. at 20. If only two
toutes were needed, however, each of the four interested drivers would drive one semester of a
kindergarten route. Jd. Although only two routes had been needed in recent history, Heldt and
LaPorte anticipated a possible need for three routes because of the geographic spread of
kindergartners within the district in 2000-2001. Heldt Aff. 7 5.

Johnson implies that this account is disingenuous. To bolster her claim that the route
Teassignment was retaliatory, Johnson points to several incidents that demonstrate her union
support and that span the course of her employment at Beecher. She contends that these
incidents establish that LaPorte and the Beecher administration were aware of her pro-union
sentiments. Defendants have asked this Court to strike the portions of Johnson’s affidavit and
Statement of Additional Facts that detail these activities — all occurring before August 2000 — as

being replete with inadmissible evidence. See Fed. R. Civ. P. 56(e) (stating that affidavits

"We note as an aside that ultimately none of the Beecher drivers actually drove for Crete,

4


must set forth specific facts showing that there is a genuine issue for trial.” Fed. R. Civ. P. 56(e).
In this case, the Rule requires Johnson to offer “specific facts” that would tend to refute the
defendants’ submissions that the reassignment decision was made before Johnson refused to
drive for Crete. Anderson, 477 U.S. at 250.

Johnson makes two attempts to discredit LaPorte and Heldt’s account of the decision’s
timing. First, she states that she “believes” that had the decision truly been made prior to her
refusal to drive for Crete, LaPorte would have “discussed this matter with her because she had
had this route for such a long time and she was a very safe, veteran driver.” P1.’s Mem. of Law at
6. She asks this Court to infer that if the decision had been made as LaPorte and Heldt claim,
then LaPorte would have informed Johnson personally and consulted her about the change in
driving duties. But this is nothing but speculation, which is insufficient to controvert LaPorte
and Heldt’s testimony regarding the sequence of events.

Second, Johnson implies that the decision could not have been made before the drivers’
mecting because, for as long as she can remember, only two kindergarten routes had been needed
and there was no reason to contemplate three. Jd. at 5. She claims that there is no evidence that
the District’s “needs concerning drivers [were] any different for the 2000-2001 school year than
they were for the 1999-2000 school year.” Jd. Yet she herself offers no evidence, no “specific
facts,” to refute the defendants’ contention that the geographic spread of kindergartners in 2000-
2001 suggested the possibility of a third route that year.

Johnson’s submissions are insufficient to refute LaPorte and Heldt’s swom account.
Though a cogent argument that another party’s testimony is illogical, unsupported, or otherwise

not worthy of credence may be sufficient to establish a genuine issue of fact, Johnson has


Dep. at 8, and testified that his conversations with LaPorte related merely to the District’s buses
and their upkeep, id. at 27.

Johnson also states that “[s]everal years ago” she served as a Democratic election judge
for her township. Pl.’s Mem. of Law at 2. At that time, she asked LaPorte whether Beecher paid
its employees while they were off work for jury duty or for election judge service. She informed
him that the union for the Chicago School District had negotiated a contract whereby Chicago
employees received paid leave to fulfill these functions. Johnson does not remember LaPorte’s
response but recalls from his expression that he thought she was joking. She infers that this
response evinces his animosity towards unions. P].’s Resp. to Defs.’ Mot. to Strike 6.

DISCUSSION

Summary judgment is proper only if the affidavits and other evidentiary materials
submitted by the parties show “that there is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c). In determining
whether a genuine issue of material fact exists, the nonmovant’s evidence “is to be believed, and
all justifiable inferences are to be drawn in his favor.” Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 255 (1986) (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59 (1970)). The
Supreme Court has stated that Rule 56(c) mandates the entry of summary judgment when, “after
adequate time for discovery,” the nonmovant “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.” Celotex v. Catrett, 477 U.S. 317, 321 (1986). Even when certain facts are

genuinely disputed, a “complete failure of proof conceming an essential element of the

nonmoving party’s case necessarily renders all other facts immaterial.” Jd. at 323.



opposing summary judgment “shall be made on personal knowledge, shall set forth such facts as
would be admissible in evidence, and shall show affirmatively that the affiant is competent to
testify to the matters stated therein”). Defendants state that these events are inadmissible because
they are speculative and conclusory, irrelevant, and too remote in time to be probative on the
issue of the alleged retaliation. Because, as discussed below, a full consideration of Johnson’s
submissions does not alter our disposition of this motion, defendants’ request to strike is denied
as moot.

The earlier pro-union incidents cited by Johnson are the following: Johnson claims that
in 1996 and 1997 Heldt helped her draft and print letters to union officials on behalf of Johnson’s
husband, a Chicago public school teacher. Johnson also claims that she told Heldt about her
husband’s employment grievances and about the assistance he had received from his union. In
1997 or 1998, Johnson submits, she had conversations with other Beecher drivers regarding
union related issues, such as picking a day for all drivers to have “blue flu.” Johnson Dep. at 38-
39. Although she admits that these conversations did not take place in the presence of LaPorte or
of any other District official, she claims that LaPorte learned about them from the District’s chief
mechanic, Anthony Wilkas. Johnson submits that because Wilkas had frequent conversations
with LaPorte, it is reasonable to infer that Wilkas informed LaPorte of Johnson’s pro-union
sentiments. Pl.’s Resp. to Defs.’ Mot. to Strike Portions of P1.’s Statement of Additional Facts &
Aff. J 8-9. Johnson also submits that in 1996 and 1997 she had numerous conversations with
Wilkas regarding unions. Johnson Dep. at 41; Johnson Aff. { 7. Although she has no
independent knowledge of Wilkas’s reporting such conversations to LaPorte, she assumes that he

did. Johnson Dep, at 42. Wilkas denies having any union conversations with Johnson, Wilkas

See...


that an employee raised a topic of societal interest for ‘personal reasons rather than a desire to air
the merits of the issue,’ . . . the speech is not entitled to First Amendment protection.”) (quoting
Smith v. Fruin, 28 F.3d 646, 652 (7th Cir. 1994)). Because, however, we can decide this motion
based on the motivating factor issue alone, we do not need to decide whether Johnson’s
statement implicated a matter of public concern. We assume for present purposes that her speech
was constitutionally protected and turn to a consideration of whether such conduct was the
substantial or motivating factor for the alleged retaliation.

B. Substantial or Motivating Factor

The court’s role in evaluating a retaliation claim is “not to second-guess the employer’s
decision, but to determine whether the employer’s substantial or motivating factor in [an
employment decision] was the plaintiffs protected conduct.” Stagman v. Ryan, 176 F.3d 986,
1002 (7th Cir. 1999). To survive this motion, Johnson must present evidence establishing that
““but for’ [her] protected activities” she would have been assigned a kindergarten route for both
semesters, as she had in the past. Jd. at 1003.

Johnson’s problem is that both LaPorte and Heldt’s sworn testimony establishes that the
route-splitting had been contemplated before Johnson made known her refusal to drive for Crete.
If the decision to allocate the kindergarten routes equally among the interested drivers if only two
routes were required occurred before Johnson expressed her support for the striking Crete
drivers, then her refusal to drive for Crete cannot have been defendants’ substantial or motivating
factor for the reassignment.

In defending a motion for summary judgment, the nonmovant may not “rest upon the

mere allegations or denials of the adverse party’s pleadings, but the (nonmovant’s] response . . .


‘Minute Order Form (06/97)

ey United States District Court, Northern District of Minois

Sitting Judge If Oth
barton june Matthew F. Kennelly hart Asianed Judge
CASE NUMBER 01 C 6320 DATE 10/17/2002
CASE Johnson vs, Beecher Community Schools
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:
qd) a , Filed motion of [ use listing in “Motion” box above.]

(2) ia} Brief in support of motion due

(3) a Answer brief to motion due___. Reply to answer briefdue___-

(4) a Ruling/Hearing on setfor at

(5) Qa Status hearing[held/continued to] [set for/re-set for] on setfor____- at

(6) ial Pretrial conference[held/continued to] (set for/re-set for]on__setfor__— ss at_
) o Trial[set for/re-set for]on__at

(8) Qo [Bench/Jury trial] [Hearing] held/continuedto___at

(9) o This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

OOFRCP4(m) OLocal Rule 41.1 OOFRCP41(a\(1) OFRCP41(a)(2).

ao [Other docket entry] For the reasons set forth on the attached Memorandum Opinion and Order,
defendants’ motion for summary judgment (8-1) is granted, and their requests to strike is denied as moot.
Judgment is entered in favor of defendants. The trial date of 1/6/Q is vacated.

(11) @ (For further detail see order attached to the original minute order.]

No notices required, advised in open court.

No notices required.

Notices mailed by judge’s staff.

Notified counsel by telephone.

Docketing to mail notices.

AIS

Mail AO 450 form.

Copy to judge/magistrate judge.

courtroom.
OR deputy’s
initials

Date/time received in
central Clerk’s Office



presented no such argument. Rather, she has offered only her own unsupported belief. But
unsupported personal belief is no substitute for evidence. Because she has offered no evidence,
beyond conjecture, that events occurred other than LaPorte and Heldt describe, we must assume
that in the discovery process she has uncovered none. Without supporting evidence, Johnson’s
speculations and conclusory statements are insufficient to establish the existence of a genuine
issue of fact as to whether her protected conduct was a substantial or motivating factor in the
alleged retaliation. Although her speculations arguably cast a shadow on the defendants’ version,
some “metaphysical doubt as to the material facts,” is insufficient to defeat summary judgment.
Matsushita Elec. Indus, Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).

In the absence of any actual evidence to contradict the defendants’ account, Johnson has
failed to establish that her refusal was a substantial or motivating factor for the reassignment — an
essential element of her claim and one on which she bears the burden of proof. Johnson has
therefore not raised any genuine issue of material fact, and summary judgment for defendants is
appropriate. Celotex, 477 U.S. at 323.

CONCLUSION

For the foregoing reasons, defendants’ motion for summary judgment [docket item # 8-1]

is granted, and their request to strike is denied as moot. The Clerk is directed to enter judgment

in favor of defendants. The trial date of January 6, 2003, is vacated.

MATTHEW F. KE! LLY
United States District'Judge
Date: October 17, 2002

10


This Court must therefore determine whether, having had an opportunity for discovery,
Johnson can establish the essential elements of her claim. If she cannot, she has raised no
genuine issue of material fact for trial, and defendants are entitled to summary judgment. The
plaintiff in a First Amendment retaliation case must prove that her conduct was constitutionally
protected and that such conduct was the substantial or motivating factor in the allegedly
retaliatory employment decision. Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S.
274, 287 (1977); Stagman v. Ryan, 176 F.3d 986, 999 (7th Cir. 1999). Defendants allege that
they are entitled to summary judgment because of Johnson’s inability to establish either part of
the test for retaliation.

A. Constitutionally Protected Speech

The threshold question in assessing whether speech is constitutionally protected is
“whether it addressed a matter of public concem.” Button v. Kibby-Brown, 146 F.3d 526, 529
(7th Cir. 1998) (citing Connick v. Myers, 461 U.S. 138, 146 (1983)). Defendants argue that
Johnson cannot make this showing. They claim that her statement, “There’s no way I’m doing
that,” did not invoke the protections of the First and Fourteenth Amendments because it
expressed a matter of purely personal interest. Cf: Connick, 461 U.S. at 147 (“{W]hen a public
employee speaks . . . as an employee upon matters only of personal interest, . . . a federal court is
not the appropriate forum in which to review the wisdom of a personnel decision taken by a
public agency allegedly in reaction to the employee’s behavior.”). Because Johnson simply
expressed her refusal to drive for Crete without providing her reasons for doing so, defendants
argue that her refusal implicated purely personal motives, not a desire to air the merits of an

issue. Cf Button, 146 F.3d at 530 (“Where considerations of content, form, and context suggest


would be necessary.

The parties have differing versions of what happened next. The defendants claim that
once two routes were deemed necessary, Heldt announced that Morgan and Stadt would drive the
kindergarten route in the fall semester and that Johnson and Julius would drive it in the spring.
Heldt Dep. at 23; Morgan Aff. 44. At the conclusion of the meeting, but while the drivers were
still present, LaPorte arrived. Heldt Dep. at 21; LaPorte Dep. at 18; Morgan Aff. 94. He asked
the drivers if any of them planned to attend the Crete meeting. Heldt Dep. at 22; LaPorte Dep. at
22; Morgan Aff. 4. Stadt and Morgan replied that they probably would. Heldt Dep. at 22;
LaPorte Dep. at 22-23. Johnson replied, “No. There’s no way I’m doing that.” Defs.’s
Statement of Material Facts { 22. Defendants maintain that Johnson said nothing more on the
subject, offering no reason or explanation for not attending the meeting. Jd. ] 23.

Johnson’s version of the August 23 meeting is quite different. According to her, LaPorte
arrived only a few minutes after the meeting began and was present during most ofit. Johnson
Dep. at 14. After the drivers decided that only two kindergarten routes would be needed, LaPorte
broached the subject of the Crete drivers strike. He asked the drivers if any of them was willing
to drive for Crete, id. at 19, and then looked to each driver individually for a response. Pl.’s
Resp. to Defs.’ Local Rule 56,1(a)(3) Statement of Facts { 22. Though the other two drivers
indicated some interest in doing so, Johnson replied, “No. There’s no way I’m doing that.”
Johnson Dep. at 20. She did not, however, explain why she did not want to drive. Id. at 24.
Approximately two minutes later, LaPorte himself announced the kindergarten route
assignments. Jd. at 22. Although Johnson had always driven two semesters of the kindergarten

route, she was told that for the 2000-2001 school year she would split that route with Morgan,



driving an afternoon route. Johnson drove a kindergarten route for both school semesters every
year except one until the events surrounding this lawsuit.

Sometime in the spring of 2000, an annual survey was distributed to the Beecher bus
drivers, soliciting their interest in the various bus routes available. Four drivers indicated an
interest in driving a kindergarten route: Johnson, Ellen Julius, Jenola Morgan, and Donald Stadt.
On August 21, 2000, LaPorte conducted a meeting regarding the upcoming school year with all
the bus drivers and support staff. At that meeting, among other things, LaPorte announced that
the bus drivers of Crete-Monee, a neighboring school district, were on strike. According to the
minutes of that meeting and LaPorte’s testimony, LaPorte indicated that Crete was looking for
replacement drivers during the strike and would be holding a meeting for drivers interested in
helping. He also stated that Beecher drivers would have his permission to assist Crete, so long as
any assistance did not interfere with their Beecher duties. Heldt Dep. at 12; LaPorte Dep. at 14;
LaPorte Dep. Ex. 2 at 1. Johnson does not recall these announcements, Johnson Aff. at 10-11,
but is adamant that on August 21 LaPorte did not specifically inquire whether any of the Beecher
drivers would be interested in driving for Crete. Pl.’s Resp. to Defs.’ Local Rule 56.1(a)(3)
Statement of Facts {J 18-20. The parties agree that no other discussion relative to the Crete
strike took place between Johnson and any school official on August 21. Id. § 20.

On August 23, 2000, Marla Heldt, the Beecher School District’s business manager, held a
meeting with Johnson, Morgan, and Stadt. The purpose of this meeting was to determine the
number of kindergarten routes that would be necessary for the 2000-2001 school year. Pl.’s
Resp. to Defs.’ Local Rule 56.1(a)(3) Statement of Facts 9. Using a student list and a map, the

kindergartners’ addresses where mapped out, and it was decided that two kindergarten routes


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

EASTERN DIVISION
CHRISTINE JOHNSON, )
J
Plaintiff, )
)
vs. )
) Case No. 01 C 6320
)
BEECHER COMMUNITY SCHOOLS ) Loe
AND RAYMOND J. LAPORTE, ) 0 HeTE
SUPERINTENDENT, ) CT » 1 0
) 2002
Defendant. )

MEMORANDUM OPINION AND ORDER
MATTHEW F. KENNELLY, District Judge:

Christine Johnson brought this lawsuit against her employer, the Beecher School District,
and Raymond: LaPorte, the School District’s superintendent. Johnson alleges that the defendants
violated her First Amendment rights to free speech and free assembly by retaliating against her
for union-related activity. Defendants have moved for summary judgment and have also asked
this Court to strike certain parts of Johnson’s affidavit and Statement of Additional Facts. For
the reasons discussed below, defendants’ motion for summary judgment is granted, and their
request to strike is denied as moot.

FACTS

Since the fall of 1987, Johnson has been employed as a bus driver by defendant Beecher

School District in Will County, Ilinois.. Johnson’s bus driving duties include driving high school

students to a career center in the morning, driving kindergartners home from school at noon, and