1 The Chicago School Reform Board of Trustees is now known

simply as the Chicago Board of Education.

In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 03-2777

DIANE SMITH,

Plaintiff-Appellant,

v.

STEPHANIE DUNN, individually and as

principal of Edmund Burke School, and

CHICAGO SCHOOL REFORM BOARD OF TRUSTEES,

1

Defendants-Appellees.

____________

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 01 C 8520—James B. Moran, Judge.

____________

ARGUED FEBRUARY 11, 2004—DECIDED MAY 11, 2004

____________

Before EASTERBROOK, KANNE, and WILLIAMS, Circuit

Judges.

KANNE, Circuit Judge. Plaintiff Diane Smith brought this

action under 42 U.S.C. § 1983 against defendants Stephanie

Dunn and the Chicago School Reform Board of Trustees,
2 No. 03-2777

alleging violations of her rights of free speech

and association pursuant to the First and Fourteenth

Amendments of the United States Constitution. The district

court found that Smith failed to raise a genuine issue of

material fact as to whether the discipline imposed on her by

Dunn was motivated by Smith’s speech. The court therefore

granted summary judgment to Dunn and the Board. We

affirm.

I. History

Smith, a Board employee in the Chicago public school

system since 1974, taught fifth grade at Burke Elementary

School from 1997 until she retired in June of 2002. Dunn

has served as principal at Burke Elementary since July of

1998. Dunn reprimanded and disciplined Smith on several

occasions beginning in the 2000-01 school year. The motivation for Dunn’s actions is the issue in this case.

The first conflict between Smith and Dunn arose after

Smith failed to submit electronic grades in September of

2000. On September 18, before any of Smith’s allegedly

protected speech had occurred, Dunn sent Smith a memorandum reminding Smith of the change in school policy

(paper grade books were previously acceptable for submission). Smith wrote on the bottom of the memorandum,

which she returned to Dunn, that she had “no plans of

using computerized grades . . . [i]t is not a priority.” In addition to this reminder, Dunn warned Smith in October that

she must comply with the electronic grade policy or be

subject to discipline. Ultimately, Dunn conducted a hearing

on November 10, 2000 that resulted in Smith serving a oneday suspension after she continued to refuse to comply with

the policy. Dunn testified that the reason for this suspension was Smith’s failure to submit electronic grades. 

Dunn also disciplined Smith for the stated reason that

Smith allegedly failed to properly supervise her students on
No. 03-2777 3

2 “Because of differing legal standards and responsibilities, the

Chicago Public Schools reserves the right to discipline employees

for allegations of child abuse or neglect which are substantiated

by CPS investigations, even if these allegations are determined

‘unfounded’ by IDCFS.” Chicago Public Schools Policy, Section

511.1, available at http://policy.cps.k12.il.us/. Moreover, the Board

is not required to prove allegations beyond a reasonable doubt as

(continued...)

several occasions. Office staff had reported that Smith was

not in the classroom when they attempted to reach her; the

students had to answer the calls made to Smith through the

intercom system. Dunn issued a written warning on

December 8, 2000, informing Smith that she had twice left

her students unattended. The warning noted that negligent

supervision “may result in disciplinary action that could

include suspension . . . .” Dunn, initiating disciplinary

proceedings on February 23, 2001, suspended Smith for two

days after Dunn found Smith’s students unattended for a

third time. Smith appealed this suspension, but the Board’s

hearing officer upheld the punishment.

Most seriously, a student and her mother accused Smith

of physically abusing the student during a fifth-grade class

session. The student alleged that Smith, angry because she

thought the student was talking, grabbed her by the neck

and forced her to her feet. Next, Smith allegedly grabbed

the student’s arm and pulled the student outside the classroom. Dunn removed Smith from the classroom during the

investigation of this incident. She was assigned to work

for the assistant principal for several months so that she

did not come into contact with children. Although the

Illinois Department of Children and Family Services and

the State’s Attorney declined to prosecute Smith, she was

suspended for five days in September 2001 after a Board

investigation.2
4 No. 03-2777

(...continued)

the State’s Attorney would if criminal charges had been brought.

See Bd. of Educ. v. State Bd. of Educ., 497 N.E.2d 984, 993 (Ill.

1986).

Besides these three substantial punishments, there were

three additional reprimands issued to Smith by Dunn

during Dunn’s tenure as principal. The first was a memorandum issued on September 25, 2000, reminding Smith to

sit at the lunch table with her students. The second memorandum, written in January 2002, reprimanded Smith

for again failing to submit her electronic grade book in

December of 2001. The third memorandum, written on

February 6, 2002, informed Smith that the bulletin board

she had been assigned to decorate by February 1 was still

bare.

Contrary to the stated justifications for each of the

punishments and reprimands listed above, however, Smith

asserts that Dunn’s treatment of her was motivated by a

desire to stop Smith from expressing herself on matters of

public concern. Along with her teaching duties, Smith participated in the Professional Personnel Advisory Committee

(“PPAC”). PPAC advised Dunn and the Local School

Committee (“LSC”), a body that makes policy for Chicago

public schools. At an LSC meeting in October of 2000,

Smith expressed concerns about a lack of textbooks and

other materials at Burke Elementary. Smith alleges that

Dunn was very irritated by this criticism of her management of the school. Smith also alleges that Dunn told the

school engineer to turn the lights off before Smith was

finished speaking and the public participation portion of the

LSC meeting had ended. Smith speculates that Dunn did

this to silence Smith and others waiting to comment on the

textbook difficulties, although the lights were turned back

on after it became apparent that individuals still wished to

speak. 
No. 03-2777 5

In January of 2000, Smith ran for a position on the LSC.

The school held a “non-binding poll” to determine which

teacher would represent it at the LSC. Smith contested the

results; she lost by one vote to another Burke teacher.

Smith criticized Dunn’s management of the poll because

Dunn, complying with what she thought were the rules set

forth by the Board, withheld the results of the election until

they were certified by the Board. Smith also criticized the

actions of Board member William Davis, who monitored the

poll. 

Smith filed the lawsuit against Dunn and the Board under 42 U.S.C. § 1983 on November 6, 2001. Smith alleged

that Dunn and the Board (through Dunn’s creation of

policy) unlawfully retaliated against her because she complained about the lack of textbooks in October of 2000 and

the perceived irregularities in the teacher representative

election in January of 2000. The district court granted the

defendants’ summary judgment motions and Smith appealed.

II. Analysis

We review de novo a grant of summary judgment; in doing so, we construe all facts in favor of the non-moving

party. See Rogers v. City of Chicago, 320 F.3d 748, 752 (7th

Cir. 2003). Summary judgment is proper “if the pleadings,

depositions, answers to interrogatories, and admissions on

file, together with the affidavits, if any, show 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.” Fed.

R. Civ. P. 56(c) (2003).

To state a claim under 42 U.S.C. § 1983 for retaliation

based upon the First Amendment, Smith must show that:

(1) her speech was constitutionally protected; and (2)

Dunn’s actions were motivated by Smith’s constitutionally
6 No. 03-2777

protected speech. Vukadinovich v. Bd. of Sch. Trs., 278 F.3d

693, 699 (7th Cir. 2002). If Smith establishes the two

prongs of the analysis, the burden shifts to Dunn to prove

that Smith would have been disciplined regardless of the

protected speech. Id. If Dunn carries that burden, Smith

bears the burden of persuasion to show that Dunn’s proffered reasons were pretextual and that discrimination was

the real reason for the discipline. Id.

We agree with the district court that Smith’s failure to

establish the second prong of Vukadinovich—whether her

speech was a “substantial factor” or a “motivating factor” for

the disciplinary actions taken by Dunn—is dispositive in

this case. See Pugh v. City of Attica, 259 F.3d 619, 629-30

(7th Cir. 2001); see also Smock v. Nolan, 361 F.3d 367, 370-

72 (7th Cir. 2004). Because Smith has failed to establish a

genuine issue as to Dunn’s motivation, we need not address

whether her speech was constitutionally protected, see

Sullivan v. Ramirez, 360 F.3d 692, 697-703 (7th Cir. 2004),

or whether the Board could have been held liable in this

case for the actions of Dunn, see Rasche v. Village of

Beecher, 336 F.3d 588, 597-601 (7th Cir. 2003). 

Smith primarily argues that because her uncontradicted

affidavit states that she had never been disciplined during

her teaching career prior to the 2000-01 school year, the

year in which she both publicly criticized Dunn and was

subjected to multiple acts of discipline, there must be

an issue for trial on Dunn’s motivation for the discipline.

Suspicious timing, however, is not enough to establish that

speech was a motivating factor for the discipline imposed by

Dunn. See Pugh, 259 F.3d at 630. 

Indeed, in this case, the timing is not very suspicious.

Each suspension and reprimand followed well-documented

cases of misconduct or insubordination. The reprimands

delivered in September of 2000 came before Dunn had expressed her views on the textbook issue at the LSC meeting
No. 03-2777 7

in October. Moreover, the discipline imposed during the

2001-02 school year, including the five-day suspension for

the student-abuse incident, came long after Smith’s criticism of the textbook situation and her failed bid for a

position on the LSC in January of 2000. There is a closer

temporal link between the speech and the November of

2000 and February of 2001 suspensions. But this suspicious

timing by itself cannot create a genuine issue of material

fact.

Smith’s additional arguments also fail to demonstrate

that Dunn was retaliating against her for her speech rather

than legitimately punishing her for misconduct. For one,

Smith claims that she was singled out for discipline while

other teachers who also failed to turn in grade books or

monitor their students were not disciplined. But the record

does not support this contention. The only evidence for this

assertion, Smith’s affidavit, relies on hearsay evidence

(purported declarations by another teacher that she had

turned in late grade books without being disciplined) and

provides no specific details to show that Smith and the

teachers she cites were similarly situated (such as when the

alleged improprieties by the other teachers occurred,

whether Dunn was aware of them, whether those teachers

were subject to the same requirements, and whether the

circumstances in the other teachers’ actions were similar to

those for which Smith was punished). 

Finally, Smith attempts to establish Dunn’s motivation by

denying that she made physical contact with the child

involved in the abuse allegations and quibbling over the

proper characterization of her other misconduct and insubordination. Dunn’s motivation, however, not the proper

factual understanding of Smith’s performance, is the issue.

See Smock, 361 F.3d at 371 (citing Waters v. Churchill, 511

U.S. 661, 679 (1994), for the proposition that unintentional

errors in assessing employees are not actionable under

§ 1983); see also Jordan v. Summers, 205 F.3d 337, 343 (7th
8 No. 03-2777

Cir. 2000) (noting that an employer’s reasons for taking an

adverse action may be “mistaken, ill considered, or foolish”

so long as the employer “honestly believed” those reasons).

Beyond conclusory allegations, Smith does nothing to show

that Dunn invented Smith’s misconduct or prompted the

student and her mother to falsely testify that Smith abused

the child.

III. Conclusion

For the foregoing reasons, we AFFIRM the district court’s

grant of summary judgment.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—5-11-04