675 F.3d 1060 (7th Cir. 2012), 10-3844, Dass v. Chicago Bd. of Educ.

Docket Nº:10-3844, 11-1104.
Citation:675 F.3d 1060
Opinion Judge:MYERSCOUGH, District Judge.
Party Name:Veronica DASS, Plaintiff-Appellant, v. CHICAGO BOARD OF EDUCATION, et al., Defendants-Appellees.
Attorney:Steven H. Hoeft, Kristina Kaluza (argued), Attorneys, McDermott, Will & Emery, Chicago, IL, for Plaintiff-Appellant. Lee A. Lowder (argued), Attorney, Chicago Board of Education Law Department, Chicago, IL, for Defendants-Appellees.
Judge Panel:Before EASTERBROOK, Chief Judge, HAMILTON, Circuit Judge, and MYERSCOUGH, District Judge.[*]
Case Date:April 12, 2012
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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Page 1060

675 F.3d 1060 (7th Cir. 2012)

Veronica DASS, Plaintiff-Appellant,

v.

CHICAGO BOARD OF EDUCATION, et al., Defendants-Appellees.

Nos. 10-3844, 11-1104.

United States Court of Appeals, Seventh Circuit.

April 12, 2012

Argued Oct. 25, 2011.

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Steven H. Hoeft, Kristina Kaluza (argued), Attorneys, McDermott, Will & Emery, Chicago, IL, for Plaintiff-Appellant.

Lee A. Lowder (argued), Attorney, Chicago Board of Education Law Department, Chicago, IL, for Defendants-Appellees.

Before EASTERBROOK, Chief Judge, HAMILTON, Circuit Judge, and MYERSCOUGH, District Judge.[*]

MYERSCOUGH, District Judge.

Veronica Dass brought this action against Paula Jeske, the Chicago Board of Education (Board), and the Chicago Public Schools 1 (CPS) after the Board accepted Jeske's recommendation that Dass not be renewed for the 2007-2008 school year and sent Dass notice that her employment would terminate on August 24, 2007. Dass alleged that: (1) the Board and CPS discriminated against her on the basis of her national origin and retaliated against her in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq. (Title VII); (2) the Board and CPS discriminated against her in violation of the Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12101, et seq. ; and (3) Jeske discriminated against her based on her national origin in violation of 42 U.S.C. § 1981. Dass also brought various state-law claims.

The district court granted defendants' motion for summary judgment with respect to the federal claims and declined to exercise supplemental jurisdiction over the state-law claims. Dass appeals only from the district court's entry of summary judgment against her on her claims of national origin discrimination under Title VII and § 1981. For the reasons that follow, we affirm.

BACKGROUND

The district court compiled a detailed and comprehensive factual history of this case which can be accessed at Dass v. Chicago Pub. Sch., No. 08 C 6045, 2010 WL 4684034 (N.D.Ill. Nov. 12, 2010). Neither party contends the district court's recitation of the facts is inaccurate.2 Moreover, while Dass proceeded under both the direct and indirect methods of

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proof before the district court, Dass's attorney stated during oral argument that Dass was " not proceeding under the indirect method here." Dass's submissions to this court on appeal confirm her attorney's representation as those submissions make no mention of the indirect method and only address her direct method theory. Dass has thus abandoned her indirect method theory. See Robin v. Espo Eng'g Corp., 200 F.3d 1081, 1088 (7th Cir.2000) (claim pursued before district court but not raised in briefs submitted on appeal was abandoned).

Dass taught a fifth-grade class at Pablo Casals Elementary School (Casals) during the 2005-2006 school year. Because of an error by the Board's Human Resources Department, Dass was displaced after that school year when Casals lost teaching positions due to budget constraints. After Dass won her grievance, the Board reinstated her and she was assigned to teach a seventh-grade class at Casals even though a third-grade class was open. Dass requested and received medical leave in December 2006. She did not return the rest of the school year. In the spring of 2007, Jeske recommended to the Board that Dass be non-renewed for the 2007-2008 school year. The Board accepted the recommendation and informed Dass that her employment would terminate in August 2007.

Dass is very specific as to what evidence she claims is direct evidence of national origin discrimination. Because we assume the parties' familiarity with the district court's opinion, and for the sake of brevity, we recount only those facts surrounding Dass's proposed direct evidence of discrimination and those additional facts necessary to our analysis of Dass's direct method theory and our holding.

I. Facts Predating the 2005-2006 School Year

Dass was born in Hyderabad, India. The Board first hired Dass as a teacher in 1991. In 2002, Dass was hired at Casals. At the time the Board hired Dass to teach at Casals, Dass had a Type 03 teaching certificate from the State of Illinois, which allowed her to teach any grade between kindergarten and eighth grade.

Dass taught second grade during the 2002-2003 school year, and third grade during the 2003-2004 and 2004-2005 school years. Aleen Donaldson was the principal at Casals during this time. While Donaldson rated Dass's overall performance on her annual teacher evaluations during these years as " excellent," Donaldson never recommended Dass for tenure. Donaldson testified at her deposition that Dass " was never really a strong disciplinarian." Donaldson testified Dass was not strict or consistent in her discipline. Donaldson thought it was possible to be a strong teacher, but not a strong disciplinarian.

Donaldson retired after the 2004-2005 school year. However, before Donaldson retired, she non-renewed Dass for the 2005-2006 school year. Dass lost her teaching position but reapplied to teach at Casals for the 2005-2006 school year. Dass was rehired and assigned to teach the fifth grade. Casals had an interim principal for several weeks at the beginning of the 2005-2006 school year until Jeske became principal in September 2005.

II. Jeske's 2005-2006 Evaluations of Dass

Jeske conducted three formal observations of Dass's performance in the classroom during the 2005-2006 school year. Those observations took place on January 10, April 28, and May 16, 2006.

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After Jeske's January 10, 2006 observation of Dass, Jeske checked the " strength column" in 27 out of 30 applicable categories on the Classroom Teacher Visitation Form. While the district court referred to Jeske's evaluation of Dass's performance as " generally positive," Jeske's deposition testimony shows that a checkmark in the strength column did not necessarily mean the teacher being observed was doing well in that category. Jeske testified a checkmark on the left side of the strength column meant the teacher was " doing a real good job in all those areas." However, a checkmark on the right side of the strength column indicated " [t]hat you are not doing so well in that. You need to work on it." Many of the checkmarks in the " strength column" appear to be on the right side of the column on the performance form for Dass. Jeske also noted on the form that Dass needed " to improve classroom management so lessons are actively participated in by students."

The Classroom Teacher Visitation Form that Jeske completed following the April 28, 2006 observation of Dass's classroom reflected far more negatively on Dass's performance than the January 2006 review did. Jeske marked many more weaknesses than before. Additionally, Jeske noted that the " English lesson on sentences is fragmented" and that " kids were shooting rubber bands, dancing, talking, out of seats, drawing [and] brushing hair."

Jeske observed Dass on May 16, 2006, and gave Dass another negative review. Jeske's notes following this observation indicated there were 22 children present in class, but only 7 were following along with Dass, that three boys were up throwing paper balls, a boy and girl were hitting each other, one boy was fanning himself with a book, two boys were making paper animals, one boy was sitting backwards on his chair, and one girl was doing her hair. Dass did not reprimand any of them.

Finally, Jeske gave Dass an " unsatisfactory" rating on her annual evaluation at the conclusion of the 2005-2006 school year. Jeske thought that Dass had poor classroom management and that most of the students were off task during class. Moreover, Dass frequently had to refer students for discipline. Finally, Jeske noted that Dass did not follow suggestions made by the administration.

Dass admitted she experienced difficulty in managing and disciplining students. However, Dass denied that her disciplinary problems were more abundant than those experienced by other teachers.

III. Incidents Dass Claims Are Direct Evidence of Discrimination

Dass sets forth the following evidence as direct evidence she was discriminated against based on her national origin: (1) Jeske's alleged statement telling Dass to look for a teaching job on the North Side where most of the Indian kids go; (2) Jeske's vehement opposition to Dass's grievance; (3) Jeske's refusal to assign Dass to an open third-grade class and instead assigning her to a seventh-grade class; and (4) Jeske's decision to send her assistant principal to formally observe and report on Dass, three times in one day, shortly after Dass started teaching the seventh-grade class.

A. Jeske's Alleged Statement

Jeske met with Dass several days after the April 28, 2006 observation to discuss the evaluation of Dass. Dass testified that during this meeting Jeske stated that Dass should start looking for a job " on the North Side where most of the Indian kids go." Jeske denies making the comment, but on review of a grant of summary judgment against Dass, we must accept Dass's testimony as true.

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B. Jeske's Opposition to Dass's Grievance

Each year, a list of teachers that are classified as a probationary assigned teacher (PAT) 3 is sent to all principals so that the principals can decide which PATs they wish to retain and which they wish to non-renew. The Board's Human Resource Department (HR Department) erroneously misclassified Dass as a temporary assigned teacher (TAT) 4. Therefore, Dass did not appear on the list of PATs sent to Jeske in the spring of 2006. Declining student enrollment projections for the 2006-2007 school year cost Casals six teaching...

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