Darchak v. City of Chicago Bd. of Educ.

• Decision Date: 03 September 2009
• Docket Number: No. 08-2732.,08-2732.
• Citation: 580 F.3d 622
• Parties: Anna DARCHAK, Plaintiff-Appellant, v. CITY OF CHICAGO BOARD OF EDUCATION, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

580 F.3d 622

Anna DARCHAK, Plaintiff-Appellant, v. CITY OF CHICAGO BOARD OF EDUCATION, Defendant-Appellee.

No. 08-2732.

United States Court of Appeals, Seventh Circuit.

Argued May 27, 2009.

Decided September 3, 2009.

Barry A. Gomberg (argued), Attorney, Gomberg & Associates, Chicago, IL, for Plaintiff-Appellant.

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

Before CUDAHY, RIPPLE and WOOD, Circuit Judges.

CUDAHY, Circuit Judge.

Anna Darchak is a Polish bilingual teacher whose one-year contract with the Chicago Public Schools was not renewed after a tumultuous school year. Darchak claims that she lost her job because she complained that the school principal was violating the No Child Left Behind Act. She says the principal's hostility also stemmed from her animosity toward people of Polish descent. Darchak filed this lawsuit against the City of Chicago Board of Education (Board), alleging, inter alia, retaliatory discharge, first amendment retaliation and national origin discrimination. The Board offers several explanations for not renewing Darchak's contract: insubordination, ineffective classroom management and refusal to follow a teaching schedule. Yet Darchak also offers evidence of discrimination.

The district court granted the Board's motion for summary judgment. We affirm the dismissal of Darchak's retaliatory discharge and first amendment retaliation claims. However, because she has put forth sufficient evidence of discrimination to reach a jury, we reverse on her national origin discrimination claim.

I

Anna Darchak moved to the United States from Poland in 1991. Three years later, she began working for the Chicago Public School system (CPS) at Taft High School, where she taught in the Bilingual and English as a Second Language (ESL) program. She resigned from her post at Taft in 2002 and took a job with the CPS Office of Language and Cultural Education (OLCE).

At the beginning of the 2004 school year, Darchak began providing ESL support to English Language Learners—students at CPS schools whose native language was not English. One of these schools was the Princeton Alternative Center, an elementary school in Chicago. By February 2005, Darchak was working at Princeton five days a week as an ESL and Polish-bilingual teacher. At that time, most of the students enrolled at Princeton were Hispanic (77%); there were also African-American (17%) and Polish (6%) students.

Princeton Principal Rosalva Acevedo hired Darchak as a full-time teacher for the 2005-2006 school year in anticipation of an increase in Polish-speaking students. Darchak's status in this new job was that of a Probationary Appointed Teacher, and she had a one-year contract, renewable at the end of the school year. Her position was funded by OLCE and was dependent on the number of English Language Learners at Princeton.

Darchak claims that within the first month of her full-time employment at Princeton, she noticed that the Hispanic students were receiving better treatment than the Polish students: Hispanic students were given better resources and native language services. When Darchak approached Acevedo with her concerns, Acevedo allegedly responded, "[Hispanic students] are better than Polish and deserve more than Polish people.... [I]f you don't want to do whatever I tell you to do, you can leave my school." At the time, Darchak did not tell anyone about Acevedo's remarks. Then, in early November, Acevedo gave Darchak a "cautionary notice" charging her with "insubordination" for refusing to follow the ESL teaching schedule. When Darchak confronted Acevedo about the notice, Acevedo allegedly replied, "I brought you to this school and you stupid Polack pushed the teachers against me."

Darchak immediately began complaining to Acevedo's supervisors in meetings and letters about what she perceived as Acevedo's mismanagement of the school. In none of this communication, however, did she mention Acevedo's disparaging remarks about Darchak's national origin. Though not at issue on appeal, Darchak also claims that, as a result of Acevedo's discrimination, she sought treatment for depression and anxiety beginning in November 2005.

In March 2006, a teaching position opened in Room 206, a classroom with a number of English Language Learners, most of whom were native Spanish speakers. Acevedo checked with the CPS Accountability Department to determine whether Darchak was qualified to temporarily teach the students in Room 206. After confirming Darchak's qualifications, Acevedo assigned her to the classroom on a temporary basis.

Darchak felt that her assignment to Room 206 violated the federal No Child Left Behind Act because she was not qualified to teach in a bilingual Spanish classroom. She repeatedly expressed this concern to Acevedo and to Acevedo's supervisors. On March 10, Darchak received a second cautionary notice, which said that she had been discourteous and negligent in supervising her students. This notice was followed by a negative performance evaluation, which stated that Darchak had difficulty following rules, interacting with students, and getting along with other school community members.

Acevedo had received word in February that funding for Darchak's position would not be available from OLCE for the following school year because of declining enrollment. In mid-March, the Board asked Acevedo which Probationary Appointed Teacher contracts she wanted to renew for the next school year. Despite the cut in funding, Acevedo chose to renew the contracts of several probationary teachers, including that of another Polish teacher. Acevedo could have renewed Darchak's contract with funding from Princeton's discretionary budget.¹ Acevedo did not recommend renewing Darchak's one-year contract, and the Board accepted Acevedo's recommendation. In April Darchak took a leave of absence that she attributed to stress. She never returned to Princeton. Darchak was officially terminated on August 31, 2006.

Darchak filed this lawsuit in January 2007, naming the Board as the sole defendant. Darchak's complaint alleged retaliatory discharge, a common law tort under Illinois law; retaliation for exercising her first amendment rights in violation of 42 U.S.C. § 1983; national origin discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-17; and disability discrimination in violation of the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12101-12213. The district court granted summary judgment for the Board. Darchak appeals her retaliatory discharge, first amendment retaliation and national origin discrimination claims; she does not challenge the dismissal of her ADA claim, and therefore we do not disturb that ruling.

II

A

To begin, Darchak claims that the Board refused to renew her teaching contract in retaliation for her complaints that her teaching assignment in Room 206 violated the federal No Child Left Behind Act. This claim is styled as an Illinois retaliatory discharge claim, cognizable here under our supplemental jurisdiction. 28 U.S.C. § 1367(a).

To establish a retaliatory discharge, Darchak must demonstrate that she was "(1) discharged; (2) in retaliation for her activities; and (3) that the discharge violates a clear mandate of public policy." Blount v. Stroud, 232 Ill.2d 302, 328 Ill.Dec. 239, 904 N.E.2d 1, 9 (2009) (citations omitted). Darchak's claim fails the first and third of these requirements.

First, Illinois courts evaluating retaliatory discharge claims have refused "to recognize a claim in any injury short of actual discharge." Bajalo v. Northwestern Univ., 369 Ill.App.3d 576, 307 Ill.Dec. 902, 860 N.E.2d 556, 561 (2006). "Actual discharge" means termination of an "at-will" employee—one whose employment has a nonspecific duration that can be terminated for any reason—not nonrenewal of a fixed-term employment contract. Krum v. Chi. Nat'l League Ball Club, Inc., 365 Ill.App.3d 785, 303 Ill.Dec. 434, 851 N.E.2d 621, 624 (2006). Indeed, Illinois appellate courts have expressly refused to extend the reach of the retaliatory discharge tort to cover the nonrenewal of a fixed-term contract. Id. at 625; see also Bajalo, 307 Ill.Dec. 902, 860 N.E.2d at 559-63.² Darchak had a fixed, one-year contract with the school district. It is therefore highly unlikely that the Illinois Supreme court would permit her to bring a retaliatory discharge claim.

Yet Darchak's retaliatory discharge claim fails in any event because the nonrenewal of her contract did not violate "a clear mandate of public policy." Although what counts as a clearly mandated public policy is not precisely defined, see, e.g., Palmateer v. Int'l Harvester Co., 85 Ill.2d 124, 52 Ill.Dec. 13, 421 N.E.2d 876, 878-79 (1981); Carty v. Suter Co., Inc., 371 Ill.App.3d 784, 309 Ill.Dec. 139, 863 N.E.2d 771, 774 (2007), the tort has been narrowly construed in Illinois to include only discharges in retaliation for certain activities, such as reporting an employer's criminal violations, Palmateer, 52 Ill.Dec. 13, 421 N.E.2d at 880, or violations of health and safety standards, Wheeler v. Caterpillar Tractor Co., 108 Ill.2d 502, 92 Ill.Dec. 561, 485 N.E.2d 372, 377 (1985). See also Kelsay v. Motorola, Inc., 74 Ill.2d 172, 23 Ill.Dec. 559, 384 N.E.2d 353, 357-58 (1978). The Illinois Supreme Court has defined "public policy" only within these limited bounds and thus "has consistently sought to restrict the common law tort of retaliatory discharge." Fisher v. Lexington Health Care, Inc., 188 Ill.2d 455, 243 Ill. Dec. 46, 722 N.E.2d 1115, 1121 (1999) (citing Buckner v. Atlantic Plant Maintenance, Inc., 182 Ill.2d 12, 230 Ill.Dec. 596, 694 N.E.2d 565, 569 (1998)).

The "public policy" that Darchak cites is found in the general purpose declaration of the No Child Left Behind Act: "that all children have a fair, equal, and significant opportunity to obtain a high-quality...