42 F.3d 403 (7th Cir. 1994), 93-2498, Cliff v. Board of School Com'rs of City of Indianapolis, Ind.

Docket Nº:93-2498.
Citation:42 F.3d 403
Party Name:Johnnie M. CLIFF, Plaintiff-Appellant, v. BOARD OF SCHOOL COMMISSIONERS OF the CITY OF INDIANAPOLIS, INDIANA, Mary Busch, Donald Payton, et al., Defendants-Appellees.
Case Date:December 09, 1994
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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42 F.3d 403 (7th Cir. 1994)

Johnnie M. CLIFF, Plaintiff-Appellant,



INDIANA, Mary Busch, Donald Payton, et al.,


No. 93-2498.

United States Court of Appeals, Seventh Circuit

December 9, 1994

Argued Sept. 12, 1994.

Rehearing and Suggestion for Rehearing En Banc Denied March 7, 1995.

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[Copyrighted Material Omitted]

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John O. Moss (argued), Indianapolis, IN, for plaintiff-appellant.

John B. Drummy, Donald L. Dawson, Thomas E. Wheeler (argued), Kightlinger & Gray, Indianapolis, IN, for defendants-appellees.

Before GODBOLD, [*] FLAUM, and ROVNER, Circuit Judges.

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Johnnie Cliff taught mathematics and chemistry in the Indianapolis public school system for approximately twenty-eight years before the Board of School Commissioners of the City of Indianapolis ("IPS" or the "Board") voted not to renew her contract for the 1988-89 school year. IPS maintains that its decision was prompted by a series of unsatisfactory performance reviews which indicated that Cliff's effectiveness in the classroom had been compromised by her inability to control her students. Yet Cliff contends that the Board's decisions can be linked to unlawful race, sex, and/or age discrimination. 1 She also charges that IPS engaged in a series of retaliatory acts against speech protected by the First Amendment. The district court granted IPS' motion for summary judgment, finding on the retaliation claims that Cliff's statements did not constitute speech on a matter of public concern, and on the discrimination claims, that Cliff had not shown IPS' legitimate, non-discriminatory reasons for its employment decisions to be pretextual. Cliff challenges those conclusions in this appeal, but we agree with the district court and thus affirm its judgment.


IPS hired Cliff in 1960 to teach mathematics and science, and in 1972, she began exclusively to teach math at Broad Ripple High School ("BRHS"). Between 1972 and 1984, Cliff's immediate supervisor was Clyde Hochstedler, the Math Department Head at BRHS. Although Hochstedler generally had given Cliff satisfactory performance reviews in the past, during the 1984-85 school year, he noted that Cliff had difficulty maintaining control of her classroom. Hochstedler recommended avenues for improvement and indicated that he would recommend Cliff's dismissal unless she improved. Cliff objected to Hochstedler's conclusions and maintained in a statement attached to the review that she should not be held responsible for the rude and disrespectful behavior of her students. Cliff also filed a grievance under the collective bargaining agreement between IPS and the teacher's union (the "CBA") protesting this evaluation. Cliff's grievance asserted that any problems resulted from the overly large classes she had been assigned and not from any deficiencies in her teaching. By way of relief, the grievance requested that the size of Cliff's classes be reduced and that she receive help with classroom discipline. The grievance also indicated that Cliff should not be re-evaluated during the 1985-86 school year, as IPS had proposed, because she was a tenured teacher who had not requested a second evaluation. Although IPS determined to proceed with the proposed evaluation, Cliff voluntarily withdrew her grievance on November 6, 1985.

Karen Shepard replaced Hochstedler as Math Department Head at the close of the 1984-85 school year. Shepard observed Cliff's math classes a number of times the following year and summarized her findings in an April 28, 1986 evaluation. Shepard found Cliff unsatisfactory in her ability to motivate students and to maintain discipline and control over the classroom. Rather than recommending Cliff's dismissal, however, Shepard suggested that IPS renew Cliff's contract subject to a Performance Improvement Plan ("PIP"). 2 Cliff subsequently filed a grievance addressed to this review, contending that Shepard's evaluation and recommendation violated the CBA. After this grievance was set for arbitration, it too was voluntarily withdrawn by Cliff's representatives.

On February 28, 1986, Cliff applied for the position of science/math technical applications teacher at Crispus Attucks High School ("CAHS"). IPS decided, however, that she was not the most qualified applicant and denied Cliff this transfer.

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In January 1987, Cliff and the teacher's union complained that Cliff was not receiving sufficient support in meeting the goals of her PIP. In response to these complaints, BRHS' principal, Donald A. Glenn, asked Dr. Thomas Clark, IPS' mathematics supervisor, to observe and to critique Cliff's teaching strategies. 3 Clark noted many of the same deficiencies that had been identified by Hochstedler and Shepard, and he too offered oral and written recommendations for improvement. Yet in her discussions with Clark, Cliff again blamed any discipline problems on the size of her classes and on the lack of support from the BRHS administration. She also told Clark that Glenn and Shepard were discriminating against her in the evaluation process due to her age and race.

At the same time that Clark was offering his assistance, Shepard was observing and evaluating Cliff for purposes of her 1986-87 performance review. During the first semester of that school year, Shepard perceived little or no improvement in Cliff's performance. Yet by the second semester, Shepard noted that Cliff had become more receptive to outside advice and that her teaching strategies and command over the classroom had improved accordingly. Although Shepard still assigned Cliff unsatisfactory grades in a number of areas, she did not advocate termination but again recommended that Cliff's contract be renewed subject to a PIP. Cliff then exercised her right under the CBA to request a second evaluation, and Madora Walker, an African-American female and Math Department Head at another Indianapolis high school, was chosen as the evaluator. After observing Cliff's classes on several occasions, Walker found deficiencies in a number of areas and echoed many of Shepard's concerns with classroom discipline.

Cliff grieved these evaluations on May 22, 1987, again complaining that the evaluation process violated the CBA. The matter was submitted to arbitration, and on October 28, 1987, a hearing was held before a jointly-selected arbitrator, who subsequently made the following findings:

It would serve no useful purpose to repeat the plentiful details of the proof presented at the Hearing concerning the deficiencies in [Cliff's] teaching performance since 1985. It is undenied that the General Mathematics classes assigned to Ms. Cliff consist of many indolent pupils who constitute a severe challenge to the professional skills and emotional stability of any teacher. The other teachers at BRHS have these same recalcitrant students and meet the challenge. The overwhelming weight of credible evidence presented by IPS requires a finding of fact that it has proved that the evaluations were not flawed by being arbitrary, capricious or discriminatory. Two evaluators with different racial origins and both Heads of Mathematics Departments at different IPS High Schools reached substantially similar conclusions from their classroom observations of [Cliff]. In eight or more specific requirements, Ms. Cliff had failed to perform competently. The School Board exercised its right to determine that Grievant's performance as a teacher was unsatisfactory and the evidence of record in this case strongly supports that judgment and cannot be altered.

(R. 530, Ex. O at 6-7.)

While Cliff's grievance was proceeding and before the arbitrator had rendered a decision, Shepard resigned as BRHS' Math Department Head. Moreover, the position of Math Department Head at Emmerich Manual High School ("EMHS") also became vacant. Cliff applied for both positions in August 1987, but of the ten applicants, she received the lowest rating from the placement committee. 4 Lana Cardwell, a forty-three-year-old Caucasian female ultimately replaced Shepard at BRHS, and a forty-six-year-old Caucasian male became EMHS' Math Department Head.

Cardwell then observed and evaluated Cliff during the 1987-88 school year. In her summary evaluation, Cardwell cited the same deficiencies noted by the previous evaluators and also found that Cliff had failed to meet

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the goals of her second-year PIP. Cardwell noted, moreover, that Cliff continued to absolve herself of any responsibility for the disciplinary problems in her classroom. As a result of this evaluation, Cardwell recommended that Cliff's contract not be renewed.

Cliff requested a second evaluation under the CBA, and Clark was appointed to perform this task. After again observing her classes, Clark found Cliff "to be primarily ineffective in the classroom." (R. 530, Ex. S.) He indicated that students have little or no respect for Cliff and that they often are openly defiant. Clark found Cliff's attempts at discipline to be tentative, inconsistent, and generally ineffective. Like Cardwell, then, Clark recommended that Cliff's contract not be renewed.

As Cliff was being re-evaluated, she requested a transfer to the chemistry department at Arsenal Technical High School ("ATHS"). Cliff maintained that she would be a more effective teacher in the ATHS science magnet program. IPS denied this request, citing Cliff's substandard evaluations and the fact that she had last taught chemistry in 1972.

By letter dated March 25, 1988, the Board notified Cliff that it would consider the cancellation of her contract at its April 26, 1988 meeting. The letter explained:

You have a right to a hearing before the Board of School Commissioners on the reason for the proposed cancellation of your contract. If you desire such a...

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