In the

United States Court of Appeals

For the Seventh Circuit

No. 00-2394

VASHTI LOVE, DR. CLAUDINE MOORE,

and WILLIE EDWARDS,

Plaintiffs-Appellants,

v.

CITY OF CHICAGO BOARD OF EDUCATION and

MILTON ALBRITTON, individually and as

Principal of the Wadsworth Elementary School,

Defendants-Appellees.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 97 C 8786--W. Thomas Rosemond, Jr., Magistrate Judge.

Argued December 5, 2000--Decided February 20, 2001

 Before POSNER, EASTERBROOK, and EVANS, Circuit

Judges.

 EVANS, Circuit Judge. The three plaintiffs in

this case publicly spoke out against their boss,

Milton Albritton, the principal of Wadsworth

Elementary School, and each was disciplined in

some manner after doing so. The three responded

with this sec. 1983 action alleging that the

discipline they endured constituted impermissible

retaliation for the exercise of their First

Amendment rights. A jury didn’t see it that way

as it returned a verdict in favor of Albritton

and his codefendant, the City of Chicago Board of

Education.

 Albritton has been the principal of Wadsworth,

located in the Woodlawn neighborhood of Chicago’s

south side, since 1988. In that capacity he has

final authority to reprimand the Wadsworth staff

and to raise or lower their performance

evaluations. Albritton also determines each

teacher’s assignment within the school, subject

to his or her qualifications and the union

contract, which states that a teacher’s

preference should be honored when possible. The

Board of Education, of course, supervises

Albritton’s management of Wadsworth. In addition,

the Wadsworth Local School Council--an elected
body made up of parents, teachers, community

representatives, and Albritton--has oversight

authority over the school’s programs,

improvements, and finances. The Local School

Council has renewed Albritton’s contract on three

occasions, in 1991, 1995, and 1999.

 During the 1994-95 school year, Wadsworth

implemented a special education program referred

to as "inclusion." The inclusion program was

designed to integrate special education students

into regular classes to the greatest extent

possible. Inclusion, therefore, requires that

students with special needs be placed in the

"least restrictive environment." In order to

achieve this result, social workers and school

officials conducted a case study of each special

education student. The product of each case study

was a document called an Individualized Education

Plan, or IEP, which set out the student’s goals,

along with any necessary accommodations and

services to be provided. IEPs also contain highly

personal information, such as a social history of

the student and his or her family, psychological

assessments, academic records, and a catalog of

parent and teacher concerns. We turn now to the

specific complaints of the three plaintiffs,

starting with Vashti Love.

 Love, a teacher at Wadsworth since 1991, had

some experience in "inclusion," and she claimed

she quickly grew dissatisfied with the progress

of the program. Specifically, she became

concerned that a number of regular education

teachers were insufficiently attentive to special

education students, and as a result those

students did not always receive the services and

accommodations outlined in their IEPs. After

several complaints to Albritton in 1995 and early

1996 did not resolve Love’s perceived problems,

she delivered letters to Paul Vallas, the Board’s

CEO, and Garland Cleggett, the chief education

officer in Region 5 of the Chicago Public

Schools, accusing Albritton and five staff

members of conspiring to sabotage the inclusion

program. In addition, Love charged 9 other staff

members with aiding and abetting the sabotage and

22 additional staff members with working against

the program.

 In response to Love’s complaints, Beverly

Kelley, the special education administrator for

Region 5, met with Love on December 4, 1996.

Kelley agreed to make unannounced visits to

Wadsworth, which she did. Kelley also referred

Love to Andrea Kidd, the assistant director of

Citywide Special Education Programs, to

investigate Love’s charges that inclusion funds

were being mishandled at Wadsworth. After meeting

with Love and examining Wadsworth’s financial
records, Kidd found no evidence to support Love’s

allegations.

 On February 5, 1997, Love met with Albritton

and several Region 5 staff members, including

Cleggett, Kelley, and Kidd, to further voice her

concerns about adherence to IEPs. Love brought

several student IEPs to the meeting without

obtaining Albritton’s or the parents’ permission

to do so. Although all participants in the

meeting were authorized to see the IEPs, Kelley

informed Love that she had violated the Illinois

School Student Records Act, 105 ILCS 10/1 et

seq., by removing the IEPs from secure files at

the school. After the meeting, Cleggett,

Albritton’s immediate supervisor, directed

Albritton to discipline Love for bringing IEPs to

the meeting. The next day, Albritton wrote Love

a letter stating that she had violated board

policy by bringing IEPs of eight students to the

meeting. Albritton also met with Love concerning

this incident.

 Undeterred, Love filed a complaint with the

Department of Monitoring and Implementation

concerning what she perceived to be violations of

inclusion policies and IEPs. The Board sent an

attorney, Jay Kraning, to investigate Love’s

complaints. In a March 18, 1997, interview, Love

told Kraning that Albritton and 35 Wadsworth

staff members were sabotaging the inclusion

program. Love also made several accusations--some

of them inconsistent with later statements--

regarding the quality and amount of inclusion

training offered to the Wadsworth staff. After

interviewing a host of Wadsworth teachers and

administrators, Kraning came to a stark

conclusion: "Having read all of Mrs. Love’s memos

containing all of her accusations on imagined

injustices against her, as well as meeting with

her face to face and hearing her retell all of

her complaints and theories dating back to 1994,

I question her ability to perceive reality." Love

responded to Kraning’s investigation by lodging

a complaint against him with Lynn St. James, the

Board’s chief education officer. Love also

reiterated her complaints about inclusion and

related issues at an open board meeting on June

25, 1997.

 Love alleges that Albritton retaliated against

her for raising complaints about the

implementation of inclusion at Wadsworth. For

example, on February 19, 1997, 2 weeks after

Love’s meeting with the Region 5 staff, Albritton

observed the teachers on the third floor of

Wadsworth, including Love, as part of the annual

evaluation process. Albritton rated Love as

having strengths in 13 of the 14 areas he

assessed. He marked one area as a weakness,
however: "Complies with the policies, rules &

regulations of the school system & of the

building." Albritton observed Love’s classroom

again on May 28, 1997, this time finding

strengths in 34 of the 35 areas he examined. He

marked as a weakness only her attitude toward

cooperation with school personnel. Albritton

subsequently lowered Love’s overall performance

evaluation from "superior" to "excellent" in June

1997./1 Four other teachers had their ratings

lowered from "superior" to "excellent" for the

1996-97 school year, but Love was the only one of

the five to have complained about the

implementation of inclusion.

 Albritton’s alleged retaliation against Love

continued the following school year. Although

Love had been teaching the upper division at

Wadsworth for 6 years, Albritton shifted her to

a primary-through-intermediate position for the

1997-98 and 1998-99 school years against her

wishes. Albritton testified that he shifted Love

to fill a vacancy and that he considered her an

excellent teacher and the most suitable candidate

for the position. Eleven other Wadsworth teachers

were rotated from their preferred assignments for

the 1997-98 school year. Significantly, the Board

never sought to suspend or discharge Love, and

she continues to teach at Wadsworth to this day.

 Claudine Moore, our second plaintiff, came to

Wadsworth as a math facilitator in 1989, became

a fourth-grade teacher in 1992-93, and was

transferred to teach preschool in 1993-94. Moore

also lodged several complaints about Albritton.

For example, in 1992 she advised the Wadsworth

Local School Council that Albritton failed to

establish a Professional Problems Advisory

Council, as required by the School Reform Act.

Albritton subsequently set up such a council, but

when he failed to renew it in 1993 and 1994,

Moore renewed her complaints. In addition,

between 1995 and 1998 Moore raised several issues

with the Local School Council concerning

Albritton’s management of the school, including

the progress of the implementation of inclusion.

Albritton reportedly became furious with Moore

over these incidents and on more than one

occasion raised his voice at her during the

meetings. In February 1995 and February 1997

Moore spoke out against Albritton at open board

meetings, complaining about the manner in which

Albritton conducted the Local School Council

meetings and alleging that Albritton retaliated

against her for her previous complaints. She also

sent letters to Cleggett and Vallas complaining

of retaliation.

 Moore points to several incidents which she

says constitute retaliation for her complaints
against Albritton. In March 1993 Albritton

notified Moore that her performance evaluation

might be lowered because she left students

unsupervised in her classroom, she was

insubordinate, she failed to perform duties

relating to a child’s welfare, she was

chronically tardy, and she failed effectively to

use instructional time. Albritton subsequently

lowered her evaluation from "superior" to

"excellent" for the 1992-93 school year.

 Moore’s evaluations continued to decline the

following year. On May 6, 1994, Albritton noted

4 strengths and 26 weaknesses in a visit to

Moore’s classroom. According to Albritton, he

continued to have problems with Moore and, in

late 1994, was forced to request that the Board

terminate her. The Board issued a warning

resolution instead, on March 22, 1995, citing,

among other things, 70 incidents of tardiness

during the 1993-94 school year, insubordination

to the principal, and conduct unbecoming a

teacher, such as telling parents she would teach

their children nothing but the basics and

insulting a student by questioning how he made

the Honor Roll. Several months later, Albritton,

without explanation she says, had police escort

her from the school while she was teaching a

summer school session.

 Albritton’s dissatisfaction with Moore continued

in 1996. On May 2 he issued a notice of predisciplinary hearing charging Moore with numerous

offenses, and shortly thereafter recommended that

she be terminated. A reviewing officer appointed

by the Board found substantiation for the charge

of insubordination, and Moore was suspended for

5 days without pay. A short time after her

return, on November 19, 1996, Moore became

involved in an altercation with the school nurse

and, less than one month later, was cited by

Velma Cooksey, the head teacher, for

disrespectful treatment of Cooksey in front of

parents and students.

 Albritton issued Moore an unsatisfactory

performance evaluation for the 1996-97 school

year and for each school year thereafter. Moore

filed a grievance after each such evaluation, and

each time her evaluation was changed to "no

rating" because Albritton failed to give Moore

the required notice of his intent to lower her

rating. Albritton did not permit Moore to teach

summer school in 1997 and suspended her again in

February 1998. During the 1997-98 school year, 9

of the 15 students who started in Moore’s class

were transferred to other classes because of

complaints from their parents about Moore.

 The final plaintiff, Willie Edwards, began
working as an instructional aide at Wadsworth in

August 1996 and, like Love and Moore, his

relationship with Albritton turned sour. In

November 1996 Edwards attended an inclusion

meeting for all staff at which Love got into a

heated argument with a school official. Edwards

claimed to have observed Albritton smiling as the

official yelled at Love and, taking exception to

this fact, sent a memo to Albritton expressing

his displeasure with the incident. Edwards

followed this up with three early 1997

complaints: (1) a complaint to two board members

regarding his treatment by Albritton and several

regular education teachers, as well as the

treatment of special education students by

regular education teachers, (2) a complaint to

Albritton concerning a lack of respect for the

inclusion program, and (3) a complaint to Vallas

concerning his treatment by Albritton. Edwards

also attended the June 1997 open board meeting in

support of Love.

 Like the other plaintiffs, Edwards was

disciplined by Albritton during the general time

periods in which he made complaints. In the fall

of 1996 and spring of 1997 Albritton placed three

written reprimands in Edwards’ mailbox accusing

him of tardiness. The problem continued the

following school year and, after a number of

additional reprimands failed to have any effect,

Albritton sent Edwards a notice of predisciplinary hearing dated June 9, 1998, charging

that he had been tardy 35 times during the 1997-

98 school year, for an accumulated total of 7

hours and 38 minutes. Although Edwards disputed

the accuracy of many of Albritton’s charges and

cited his wife’s illness as a mitigating factor

for any occasion on which he admitted being late,

he was given a one-day suspension. Other tardy

employees were also suspended.

 In addition to the alleged punctuality problem,

Albritton noted several other deficiencies in

Edwards’ performance. In April 1997 the Board

received an anonymous complaint accusing Edwards

of transporting students without proper

authorization and giving candy and money to

students. After looking into the matter, the

Board’s director of investigations determined

that the transportation charge was meritorious.

Edwards testified that he gave rides to students

only at Albritton’s request and that he was told

all of the charges had been deemed unfounded.

Also in April 1997 Albritton reprimanded Edwards

for letting students into the building early and

in May 1998 reprimanded him for reading a

newspaper at an inappropriate time. Edwards

denied that he had let students into the building

early and contended that he read the newspaper as

part of a classroom exercise. As to many of these
incidents, Edwards testified that other members

of the Wadsworth staff committed similar

infractions but were not disciplined.

 Although the plaintiffs’ brief lists five issues

on this appeal, they really are making only two

claims: that the evidence in support of the

verdict against them was insufficient and that

the trial judge committed reversible error when

he permitted the jury to disband for the weekend

without consultation with the parties and without

giving admonitions to the jurors to refrain from

talking about the case while deliberations were

suspended. The first issue, given our standard of

review--we view the evidence in the light most

favorable to the winning party--is a dead-bang

loser. See Palmquist v. Selvik, 111 F.3d 1332,

1335 (7th Cir. 1997). The second issue gives us

some concern, but far from enough to order a

repeat performance of the trial.

 Because a verdict must stand unless no rational

jury could have found as it did, and because, as

we just said, we view the evidence in the light

most favorable to the verdict, see Emmel v. CocaCola Bottling Co. of Chicago, 95 F.3d 627, 630

(7th Cir. 1996), the three plaintiffs here have

"a hard row to hoe." Sheehan v. Donlen Corp., 173

F.3d 1039, 1043 (7th Cir. 1999). And they would

lose this appeal even if the standard was less

difficult for a loser to surmount.

 A plaintiff bringing a sec. 1983 claim based on

First Amendment grounds must establish (1) that

his conduct was constitutionally protected and

(2) that his protected conduct was a substantial

or motivating factor in the challenged action by

the defendant. Johnson v. University of

Wisconsin-Eau Claire, 70 F.3d 469, 482 (7th Cir.

1995). Proof that the defendant was "brimming

over with unconstitutional wrath" against the

plaintiff is insufficient; rather, the plaintiff

must demonstrate that the challenged action would

not have occurred "but for" his constitutionally

protected conduct. Button v. Harden, 814 F.2d

382, 383 (7th Cir. 1987). Moreover, even if the

plaintiff clears this hurdle, a defendant can

still prevail if he proves, by a preponderance of

the evidence, that he would have taken the same

action even in the absence of a plaintiff’s

protected conduct. Johnson, 70 F.3d at 482.

 A wealth of evidence supports the jury’s

conclusion that any actions taken against the

three plaintiffs had nothing at all to do with

their protected conduct, or at least that such

actions would have occurred even in the absence

of protected conduct./2 With regard to Love, the

jury was certainly entitled to credit Albritton’s

testimony that Love’s performance evaluation for
1997 was lowered from "superior" to "excellent"

because she removed student IEP’s from the school

in violation of state law. The jury’s conclusion

that this was not a retaliatory action is further

supported by the fact that Albritton returned

Love’s evaluation to "superior" the following

school year, even though Love continued to speak

out against him. Moreover, Albritton lowered the

evaluations of four other Wadsworth teachers from

"superior" to "excellent" for the 1996-97 school

year, and none of the four had lodged complaints

against him.

 Love also claims that Albritton’s 1997 interim

evaluations of her--in which he rated her strong

in 13 of 14, and 34 of 35, areas--constitute

retaliation. Hogwash. First, it’s hard to see how

an evaluation that is so lopsided on the side of

adequate can be considered a black mark on Love’s

record. Also, the proximity of these evaluations

to Love’s improper removal of the IEPs, and the

areas in which Albritton rated her as weak

("[c]omplies with the policies, rules &

regulations . . ." and cooperation with school

personnel), are strong evidence that Albritton

merely was responding to Love’s misconduct.

Finally, the jury’s acceptance of Albritton’s

explanation for his decision to alter Love’s

assignment for the 1997-98 and 1998-99 school

years--that he filled a key vacancy with a strong

teacher--was fully justified, especially given

that 11 other teachers (out of 42) were rotated

away from their preferred assignments at the same

time. In short, the defendants produced more than

sufficient evidence that any actions taken

against Love--even if they were "adverse" job

actions, a stretch here--were wholly unrelated to

her complaints about inclusion.

 The same for Moore. Although she received poor

performance evaluations and was disciplined on a

number of occasions by Albritton, the evidence

shows that the defendants acted with restraint.

For example, Albritton became fed up with Moore’s

tardiness and insubordination as early as the

1992-93 school year, and recommended her

termination in 1994, but the Board responded only

with a warning resolution. The resolution

documented 70 incidents of tardiness during the

1993-94 school year, insubordination to

Albritton, and conduct unbecoming a teacher.

Insubordination was also cited as the reason for

Moore’s 1996 suspension. "We have consistently

held that an employee’s insubordination toward

supervisors and coworkers, even when engaged in

protected activity, is justification for [adverse

employment action]." Kahn v. United States Sec’y

of Labor, 64 F.3d 271, 279 (7th Cir. 1995). The

jury apparently believed, based essentially upon

its assessment of Albritton’s credibility, that

Moore was disciplined for insubordinate conduct,
and we find nothing in the cold record to impeach

that determination. Certainly the more than 50

percent rate of parents pulling their children

out of Moore’s classes during the 1994-95 and

1996-97 school years speaks ill of her teaching

ability and public relations skills. Accordingly,

the jury didn’t err in concluding that Moore was

disciplined for her performance, not for any

protected speech in which she engaged.

 Finally, the jury could reasonably have found

that defendants did not retaliate against

Edwards. Although he was disciplined in 1996 and

1997, the years he lodged complaints against

Albritton, nothing in the record contradicts

Albritton’s assertion that the sanctions were

imposed to address Edwards’ serial tardiness and

various other offenses. Albritton’s version of

events is supported by the fact that many of his

reprimands of Edwards took a written form,

including the June 9, 1998, notice of a predisciplinary hearing which set out the precise

amount of time Edwards had been tardy during the

1997-98 school year (7 hours and 38 minutes). At

the very least, this contemporaneous

documentation of the charges against Edwards

proves that tardiness was not a pretextual

justification dreamed up after the filing of this

lawsuit. Although these written records do not

exclude every possibility of a well-planned plot

to retaliate, the jury was entitled to believe

Albritton’s straightforward assertion that

Edwards was disciplined purely for reasons of

substandard performance.

 For the second issue--whether the judge erred

by releasing the jury over the weekend without

informing the parties and without repeating an

earlier cautionary instruction not to discuss the

case--we need a little background.

 The trial began on April 25, 2000. Prior to a

short break that afternoon, the judge cautioned

the jurors not to discuss the case with the

attorneys. When the jurors returned from the

break, the judge clarified (or at least made an

attempt to clarify) his earlier instruction:

"[E]veryone feels more comfortable if you didn’t

say anything to anybody . . . . [Y]ou may just

nod, probably better that you not talk to

anybody, including, of course, you can’t talk

amongst yourselves about the case, so I stand

corrected, all right?" Neither this statement,

nor anything like it, was repeated when the jury

was excused for the evening on April 25. No

admonitions to the jury of a similar sort were

requested or given on either April 26 or 27.

 Prior to the beginning of the jury’s

deliberations on Friday, April 28, the judge gave
a number of instructions, including: "If you

recess during deliberations, follow all the

instructions that I have given you considering

your conduct during the trial; that is, if it

goes over to Monday." At 4:40 p.m. that day, the

jurors sent a note to the judge asking if they

could resume deliberations on Monday morning.

After receiving the note, the judge dismissed the

jurors without advising the parties of the note

and without giving cautionary instructions to the

jurors before they departed. Apparently the

attorneys were told after the fact on Friday that

the jurors were sent home with instructions to

return on Monday.

 On Monday morning, apparently feeling some heat

from the attorneys, the judge explained Friday

afternoon’s events. Albritton’s attorney

complained about not knowing of the note, and the

judge was asked to poll the jurors to see whether

they spoke among themselves or with anyone else

about the case over the weekend. The Board’s

attorney asked that they be polled as to whether

they read any materials that painted the Board in

a "negative light." (Whether or not there was any

"negative" material is a mystery as nothing

specific in that regard was called to the judge’s

attention.) The judge asked if the plaintiffs had

a position on the matter, and their attorney

responded that he considered it improper to poll

the jurors on what they may have read because

they had not been instructed earlier to avoid

reading newspapers. Plaintiffs’ counsel then

stated: "With respect to polling the jurors to

see if they have spoken among themselves or with

someone else, I have no idea what the case law is

on that issue but it would not seem to be the

diplomatic thing to do at this point in time."

The judge decided not to poll the jury, which

later returned its verdict in favor of the

defendants.

 Nobody exactly covered themselves with glory by

the way this matter was handled in the district

court or on this appeal, as fault can be found

with the judge and the attorneys for both sides.

But however it all shakes out, nothing occurred

that remotely suggests that the drastic step of

ordering a retrial of this case should be

considered.

 First, a note about notes. Deliberating juries

often send notes to trial judges. Ordinarily, the

content of those notes should be shared with the

parties, but a little common sense must be

exercised. A note, for instance, saying that

jurors prefer to have hamburgers from McDonald’s

brought in to the jury room over the lunch hour

rather than have their deliberations suspended

while they are taken to a restaurant hardly needs
to be shared with anybody. But notes that concern

important issues must always be shared, and

doubts about disclosures should always be

resolved by disclosing.

 In United States v. Widgery, 778 F.2d 325 (7th

Cir. 1985), we found it regrettable that a trial

judge had not shared with the parties a note

received by the judge from the jury accusing one

of the jurors of intoxication, along with another

asking what would happen if a verdict could not

be reached. Notes of this sort must always be

shared with the parties. The note in question

here falls closer to the McDonald’s luncheon

suggestion than to the notes received by the

judge in Widgery. But the note itself should

never have been necessary. Matters like the

length of deliberations on a Friday, and when a

deliberating jury will be excused for the

weekend, are things that should be resolved ahead

of time. Certainly, if the judge had told the

attorneys when the case was submitted that he

wanted to send the jurors home for the weekend

after four in the afternoon if they had not yet

reached a verdict, no one would have, or could

have, validly objected. It would have all been

ironed out and spread on the record, and the

issue would not be before us. So in that regard

we fault the judge for not addressing this matter

earlier and for compounding the problem by

sending the jury home for the weekend without

telling the lawyers, before the fact, that he had

done so. The judge also should have repeated, at

that time, a cautionary instruction to not

discuss the case outside the jury room over the

weekend.

 But the issue for us on appeal has no merit

because the objection to how things were handled

by the trial judge was made by the winners, not

the plaintiffs. On Monday morning, before

deliberations resumed, the record was opened to

state objections, and the plaintiffs sat silent,

let alone ask for a mistrial. Under the

circumstances, especially when there is

absolutely no evidence of prejudice to the

plaintiffs’ case, their present complaint must

fall on deaf ears.

 For these reasons, the judgment of the district

court is

AFFIRMED.

/1 Love’s performance evaluation was later changed

to "no rating" because Albritton failed to give

her advance notice of his intent to lower her

evaluation, as required by the union contract.

Albritton returned Love’s evaluation to

"superior" in June 1998.
/2 The implementation of inclusion at Wadsworth and

Albritton’s handling of Local School Council

meetings were matters of public concern, and

therefore Love’s and Moore’s complaints on those

subjects were protected by the First Amendment.

See Dishnow v. School Dist. of Rib Lake, 77 F.3d

194, 197 (7th Cir. 1996) (school guidance

counselor’s complaints concerning board’s

violation of open-meetings law deemed protected

speech). Although Edwards’ complaints were

focused primarily on personnel matters, and

therefore would not normally merit First

Amendment protection, Khuans v. School Dist. 110,

123 F.3d 1010, 1017 (7th Cir. 1997), we assume

for the purposes of this appeal that all

plaintiffs engaged in protected speech.