### In the



# United States Court of Appeals

For the Seventh Circuit

____________________

No. 15

‐ 3091

M ICHELLE F RAKES

, Plaintiff

‐ Appellant

,

v.

P EORIA S CHOOL D ISTRICT N O

. 150,

Defendant

‐ Appellee

.

____________________

Appeal from the United States District Court for the

Central District of Illinois

No. 12

‐ CV

‐ 1329

— James E. Shadid

, Chief Judge

.

____________________

A RGUED O CTOBER 26, 2016

— D ECIDED S EPTEMBER 26, 2017

____________________

Before F LAUM

, E ASTERBROOK

, and W ILLIAMS

, Circuit Judges

.

W ILLIAMS

, Circuit Judge

. Michelle Frakes was honorably

dismissed from her job as a special education teacher at Peoria

School District No. 150 (”Peoria”) in a voluntary reduction of

force. Because Frakes had received “unsatisfactory” ratings as

a teacher, state law placed her on the schedule of teachers to

be dismissed. Displeased, Frakes filed a lawsuit against Peo

‐2 No. 15

‐ 3091

ria alleging that her “unsatisfactory” performance rating con

‐

stituted unlawful interference under Section 504 of the Reha

‐

bilitation Act of 1973, 29 U.S.C. § 794.

The district court granted summary judgment in favor of

Peoria, finding that Frakes failed to show that she engaged in

any protected activity giving rise to a Section 504 claim. We

agree. While Frakes provided some evidence that her “unsat

‐ isfactory” performance rating may have been unfair and her

preferred teaching method may be better suited for disabled

students, this does not render Frakes’s teaching style a pro

‐

tected activity under Section 504. Frakes provided no evi

‐

dence that she complained about or discouraged discrimina

‐

tion based on disability or engaged in any other activity pro

‐

tected by law.

In affirming the district court, we also reject Peoria’s asser

‐

tion that this case is barred by the doctrine of res judicata

. Pe

‐

oria waived this defense and agreed to defending lawsuits in

both state and federal court by waiting over a year and a half

to make a res judicata argument. That was too late.

I. BACKGROUND

A. Factual History

From August 2002 until May 2012, Frakes was a full

‐ time

special education teacher at Peoria. Beginning in August 2006,

she was assigned to the Day Treatment Program, where she

taught junior high (6

‐ 8th grade) students with various disa

‐

bilities and behavioral and emotional disorders. All of

Frakes’s students were eligible for special education services

under the Individuals with Disabilities Education Act

(“IDEA”), 20 U.S.C. § 1400 et seq

., and each student had an In

‐

dividualized Education Plan (“IEP”), which mapped out theirNo. 15

‐ 3091 3

level of performance, goals, benchmarks, accommodations,

and modifications. The students were also all prescribed Be

‐

havioral Intervention Plans (“BIPs”) to address behavior is

‐

sues which interfered with their learning.

The events giving rise to Frakes’s claim began in October

of 2011, when Carolyn Nunn assumed the role of Assistant

Principal of Day Treatment at Peoria and became Frakes’s

new supervisor. Nunn had worked as a speech

‐ language

pathologist for the school district for 18 years, was a qualified

administrator, and had experience evaluating teachers. It was

Nunn’s responsibility to evaluate Frakes’s performance. And,

like all of Frakes’s former supervisors, 1 Nunn observed sev

‐

eral deficiencies in Frakes’s teaching performance.

On February 1, 2012, Nunn gave Frakes an overall perfor

‐

mance rating of “unsatisfactory.” In her detailed evaluation,

Nunn noted that Frakes struggled with classroom manage

‐

ment and was often unprepared and unorganized in the class

‐

room, for IEP meetings, and for faculty presentations. Nunn

noted that Frakes did not collect data on her students’ perfor

‐

mance at the expected frequency, specifically observing that

for one student Frakes only had three data points for an 18

‐

week semester. Nunn’s evaluation also pointed out that

Frakes arrived late to work, leaving her class unsupervised.

When she was in class, Frakes’s lack of classroom manage

‐

ment skills left her classroom “lack[ing] order and discipline”

1 Both the district court and Peoria recounted in detail Frakes’s history

of “unsatisfactory” performance ratings and the criticisms she had re

‐

ceived from her former supervisors, Shannon Marlin and Mary Camp.

While we note that the record demonstrates that Frakes had struggled

with classroom management and performance throughout her career, we

do not find those facts necessary for our analysis.4 No. 15

‐ 3091

and “extremely chaotic.” The evaluation listed several spe

‐

cific examples during one classroom observation, in which

Nunn detailed that students “ignore[d]” Frakes, would not

comply with her orders, and that Frakes’s “inability to effec

‐ tively manage her classroom results in a significant amount

of valuable instructional time being wasted.”

When Frakes received this evaluation, she refused to sign

it because she felt that the feedback was unfair. She contended

that technology issues had affected her performance and were

responsible for her problems with a presentation to other

teachers, classroom instructions, and preparation of IEPs. She

also argued that she was not given notice that she was ex

‐ pected to prepare an IEP by a specific deadline. She asserted

that other teachers at the Day Treatment Program taught ac

‐ cording to similar principles as she did. To formalize her op

‐ position to her evaluation she drafted a document entitled

“Points for Rebuttal.” In this document she admitted that she

needed improvement in her performance and at times she

struggled with classroom management, but she defended her

teaching methods and protested Nunn’s harsh criticism.

Frakes did not mention her students’ rights or argue that her

methods of teaching were better for her disabled students.

Frakes hand

‐ delivered her “Points for Rebuttal” to the

District’s Human Resources Department. Still, as a result of

her “unsatisfactory” rating, Frakes was placed on a remedia

‐

tion plan. Frakes’s remediation plan gave her directions to im

‐

prove in the areas of deficiency noted in the evaluation. Before

the remediation period could begin, however, she informed

the District that she was unable to work due to serious health

conditions, and she was placed on medical leave status for the

remainder of the school year. During the 2011

‐ 2012 schoolNo. 15

‐ 3091 5

year, neither Frakes, nor any parents, guardians, or other Pe

‐

oria faculty filed an IDEA due process complaint or any for

‐

mal complaint challenging a violation of a student’s IDEA or

Section 504 rights. There is no record that Frakes objected to

anything in her students’ IEPs or BIPs or complained that

Nunn’s evaluations encouraged discrimination against disa

‐

bled students.

On April 9, 2012, Frakes was honorably dismissed due to

the school district’s decision to reduce its teaching force. As a

result of her “unsatisfactory” rating, Frakes, along with nine

other full

‐ time tenured teachers, was placed in “Group 2” on

the “sequence of honorable dismissal list” in accordance with

Illinois law. In the voluntary reduction of force, the Board of

Education approved the dismissal of 54 teachers, including

Frakes. Frakes received notice of her honorable dismissal in a

letter dated April 10, 2012. Her last day of employment was

on May 31, 2012.

B. Procedural History

On September 4, 2012, Frakes filed a complaint against Pe

‐

oria in the Circuit Court of Peoria County in Illinois, asserting

wrongful termination based on Section 24

‐ 12 of the Illinois

School Code. She did not raise any federal claims in this law

‐

suit, and it was defeated at the summary judgment stage. The

state court found that the District did not violate the Illinois

School Code.

A week before her state case was filed, on August 28, 2012,

Frakes filed this case against Peoria in federal court, claiming

violations of Section 504. Specifically, she claimed that her

“unsatisfactory” evaluation and subsequent honorable dis

‐

missal interfered with her ability to aid students in exercising6 No. 15

‐ 3091

their rights under Section 504. On April 9, 2015, Peoria moved

for summary judgment. The district court granted judgment

in favor of Peoria, finding that Frakes did not provide evi

‐

dence that she engaged in activity protected by Section 504.

Because it found summary judgment was appropriate, the

district court did not address the District’s res judicata argu

‐

ment. This appeal followed.

II. ANALYSIS

A. No Abuse of Discretion in Interpreting Local Rules

As an initial matter, Frakes challenges the district court’s

grant of summary judgment based on the court’s application

of Central District of Illinois Local Rule 7.1(D). District courts

have “considerable discretion in interpreting and applying

their local rules” and this court will “intrude on that discre

‐

tion only where we are convinced that the district made a mis

‐

take.” Dr. Robert L. Meinders, D.C., Ltd. v. UnitedHealthcare,

Inc.

, 800 F.3d 853, 858 (7th Cir. 2015) (quotation marks and ci

‐

tation omitted). We review a district court’s enforcement of its

local rules for an abuse of discretion. Friend v. Valley View

Cmty. Unit Sch. Dist.

, 789 F.3d 707, 710 (7th Cir. 2015).

At the time Frakes filed her motion opposing summary

judgment, Local Rule 7.1(D) stated that a party opposing

summary judgment must “list by number each fact from

... the motion for summary judgment which is conceded to be

material but is claimed to be disputed. Each claim of disputed

fact must be supported by evidentiary documentation refer

‐

enced by specific page.” Loc. R. 7.1(D)(2)(b)(2). Under the

rule, a “failure to respond to any numbered fact will be

deemed an admission of fact.” Loc. R. 7.1(d)(2)(b)(6).No. 15

‐ 3091 7

Frakes failed to follow Local Rule 7.1(D). In opposing sum

‐

mary judgment, she did not identify material and disputed

facts as required. Instead, she listed admitted facts as dis

‐ puted and added supplementary explanations to them (stat

‐ ing in her brief, “Plaintiff admits this matter, but has it listed

as disputed.”). The district court noted that Frakes’s violation

of the rule impeded judicial economy, and found “[t]he fail

‐

ure to follow the Local Rules requires the Court to do an ex

‐

tensive scouring of the record to determine if these are actual

disputed facts

... .” So, the court refused to consider Frakes’s

supplemental explanations to admitted facts and deemed

“admitted, but disputed” facts to be simply admitted. We find

the court made no error in doing so.

Contrary to Frakes’s contention, Local Rule 7.1(D) does

not conflict with Rule 56 of the Federal Rules of Civil Proce

‐

dure. While Rule 56 does not require the point

‐ counterpoint

framework for summary judgment required by Local Rule

7.1(D), the district court was within its right to establish and

enforce a local rule requiring this framework. Rule 83 of the

Federal Rules of Civil Procedure explicitly provides that a dis

‐

trict court may adopt and amend local rules so long as they

are consistent with, but not duplicative of, the Federal Rules.

Even if Local Rule 7.1(D) was merely a “requirement of

form” Frakes would have no recourse. A “local rule imposing

a requirement of form must not be enforced in a way that

causes a party to lose any right because of a nonwillful failure

to comply.” Fed. R. Civ. P. 83(a)(2). Here, Frakes’s attorney’s

failure to comply was willful, and the district court’s enforce

‐

ment of its local rules did not cause Frakes to lose any rights.

The district court noted that Frakes’s counsel was admon

‐

ished by the court for violating the same local rule in earlier8 No. 15

‐ 3091

summary judgment briefings, yet counsel knowingly chose to

violate the rule again. Further, Frakes was given a fair oppor

‐ tunity to oppose summary judgment. Any failure to properly

support her argument with evidence was her own doing.

Where a local rule is substantive and not just a “require

‐

ment of form,” a district courts’ enforcement is entitled to

even greater discretion. The Advisory Committee Notes (1995

Amendment) inform us that Rule 83(a)(2) does not diminish

“the court’s power to enforce local rules that involve more

than mere matters of form—for example, a local rule requir

‐ ing parties to identify evidentiary matters relied upon to sup

‐

port or oppose motions for summary judgment.” Frakes

failed to comply with just such a prototypical substantive lo

‐

cal rule. So, we grant deference. See, e.g., Yancick v. Hanna Steel

Corp.

, 653 F.3d 532, 537 (7th Cir. 2011) (affirming district

court’s application of its local rules and distinguishing be

‐

tween “substantive” and “of form” local rule violations.).

Frakes further argues that the Advisory Committee con

‐

sidered and rejected a point

‐ counterpoint requirement within

Federal Rule of Civil Procedure 56, and that many esteemed

judges and authors do not support such a requirement. These

arguments are not helpful. The value and efficiency of Local

Rule 7.1(D) is not a question we need address. The Central

District of Illinois has discretion to set its local rules, we ask

only whether the court fairly applied its rule. We find that it

did. The district court was well within its discretion to con

‐

sider only evidence presented in accord with Local Rule

7.1(D).No. 15

‐ 3091 9

B. No Evidence Frakes Engaged in Protected Activity

We review the district court’s grant of summary judgment

de novo

, applying the same standards as the district court and

construing all facts and reasonable inferences in the light most

favorable to Frakes. CTL ex rel. Trebatoski v. Ashland Sch. Dist.

,

743 F.3d 524, 528 (7th Cir. 2014). Summary judgment is appro

‐ priate if there are no genuine issues of material fact and the

movant is entitled to judgment as a matter of law. Id. ;

Fed. R. Civ. P. 56(a).

Section 504 of the Rehabilitation Act, 29 U.S.C. § 794, is a

sister statute to the Americans with Disabilities Act of 1990

(“ADA”), 42 U.S.C. §§ 12131–12134. As amended, Section 504

is a civil rights law that prohibits discrimination on the basis

of disability by recipients of federal funds, including public

schools like Peoria. 29 U.S.C. § 794. In the employment dis

‐

crimination context, Section 504 mirrors the standards ap

‐ plied under Title I of the ADA, including the provisions of

Sections 501 through 504, and 510 as they relate to employ

‐

ment. 29 U.S.C. § 794(d) (citing 42 U.S.C. § 12111, et seq. and

42 U.S.C. §§ 12201–12204; 12210). Put simply, Section 504 em

‐ ployment discrimination is controlled by the standards of the

ADA and a claim for “interference” pursuant to Section 504 is

established pursuant to the standards of the ADA.

Under the ADA anti

‐ interference provision, it is unlawful

to “coerce, intimidate, threaten, or interfere with any individ

‐

ual in the exercise or enjoyment of, or on account of his or her

having exercised or enjoyed, or on the account of his or her

having aided or encouraged any other individual in the exer

‐

cise or enjoyment of, any right granted or protected by [the

ADA].” 42 U.S.C. § 12203(b). While this court has not previ

‐ ously addressed an interference claim made pursuant to the10 No. 15

‐ 3091

ADA or Section 504, we agree with the district court and the

Ninth Circuit that guidance can be found in our application

of the anti

‐ interference provision of the Fair Housing Act

(“FHA”), 42 U.S.C. § 3617; see Brown v. City of Tucson

, 336 F.3d

1181, 1191 (9th Cir. 2003) (applying the FHA interference

standard to an ADA interference claim). Because the ADA

anti

‐ interference clause is identical to the anti

‐ interference

clause found in the FHA, compare 42 U.S.C. § 3617 with 42

U.S.C. § 12203(b), we use the FHA framework to establish the

legal standard for an ADA interference claim. In doing so, we

determine that a plaintiff alleging an ADA interference claim

must demonstrate that: (1) she engaged in activity statutorily

protected by the ADA; (2) she was engaged in, or aided or en

‐ couraged others in, the exercise or enjoyment of ADA pro

‐

tected rights; (3) the defendants coerced, threatened, intimi

‐

dated, or interfered on account of her protected activity; and

(4) the defendants were motivated by an intent to discrimi

‐

nate. See Bloch v. Frischholz

, 587 F.3d 771, 783 (7th Cir. 2009)

(en banc) (providing the framework for an FHA interference

claim).

We first look to whether Frakes engaged in protected ac

‐ tivity. Protected activities are those statutorily protected un

‐

der the ADA, including opposing or complaining about dis

‐

crimination based on disability. Common examples of pro

‐

tected activities are formal complaints of discrimination or re

‐ porting a public school’s failure to provide a free, appropriate

public education to students with disabilities.

Here, Frakes asserts that she engaged in protected activity

when she refused to change her teaching methods following

Nunn’s negative performance evaluation. However, this ar

‐No. 15

‐ 3091 11

gument fails because there is no evidence that Frakes’s oppo

‐

sition to Nunn’s evaluation was an assertion of rights on be

‐

half of her disabled students. While Frakes argues, for the

purposes of this lawsuit, that her teaching methods were pre

‐

ferred for behaviorally and emotionally disabled students, the

evaluation and Frakes’s “Points of Rebuttal” do not reflect a

dispute over the best teaching methods for disabled students.

In fact, there is no mention of the students’ rights or interests

at all. And, while we find no reason to doubt that it was

Frakes’s intention to best serve her disabled students, the law

protects assertions of rights, not teaching methods. The fact

that Frakes taught students who are protected by the ADA

does not alone render her teaching “protected activity.”

The court need not evaluate whether Frakes’s classroom

strategy or teaching methods were, in fact, satisfactory. Even

if there were evidence that Nunn’s evaluation of Frakes was

faulty or Nunn lacked qualifications as an evaluator, there is

nothing in the record that indicates Frakes’s teaching style

would be protected under the ADA. Again, what Frakes was

required to show is that she was asserting rights of disabled

students or challenging disability discrimination. If Frakes

had challenged Nunn’s instructions because they violated a

student’s rights, such as by asserting that Nunn’s instructions

would force Frakes to violate the terms of a student’s IEP, her

claim might survive. But, that is not the case here. Frakes only

argues that her teaching methods could be better for some

students; this is subjective and lacks statutory protection. Be

‐

cause Frakes fails to demonstrate that she engaged in a pro

‐

tected activity, her Section 504 claim fails.12 No. 15

‐ 3091

C. Suit Not Barred by Res Judicata

Peoria asserts that this suit is barred by res judicata because

Frakes had a full and fair opportunity to litigate her Section

504 claims in a related state court case. We find that Peoria

waited too long to raise the affirmative defense of res judicata.

By waiting over a year and a half to raise this defense, Peoria

acquiesced to claim splitting and res judicata does not bar

Frakes’s claims. See Lawler v. Peoria Sch. Dist. No. 150

, 837 F.3d

779 (7th Cir. 2016).

III. CONCLUSION

For the foregoing reasons, the district court’s grant of

summary judgment is A FFIRMED

.