Bordelon v. Bd of Educ. of the City of Chicago, No. 14-3240 (7th Cir. 2016)
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In November 2010, Board of Education Chief Area Officer Coates sent Bordelon , the long-tenured principal of the Kozminski Academy, notice of a pre‐discipline hearing based on insubordination in failing to respond to a parent issue; failing to arrange a requested meeting regarding the arrest of Kozminski students; and failing to respond to Coates’s email. Bordelon received a five‐day suspension without pay, which he never served. In December 2010, Coates evaluated Bordelon as needing improvement, noting that Kozminski was on academic probation for a second year with test scores trending downward. Coates reassigned Bordelon to home with full pay pending an investigation into improperly replacing asbestos‐containing tile at Kozminski; purchasing irregularities; and tampering with school computers in a manner that impeded Board access to Kozminski’s records. In early 2011, Kozminski's Local School Council voted to not renew Bordelon’s contract. Bordelon, age 63, believed that Coates, exercised undue influence over the decision, based his age, in violation of the Age Discrimination in Employment Act, 29 U.S.C. 623. The Seventh Circuit affirmed summary judgment in favor of the Board, stating that that Bordelon did not prove discrimination and that there was substantial evidence of independent reasons for not renewing Bordelon’s contract, making it unlikely that Coates influenced the Board.
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In the United States Court of Appeals For the Seventh Circuit ____________________ No. 14 3240 LIONEL BORDELON, Plaintiff Appellant, v. BOARD OF EDUCATION OF THE CITY OF CHICAGO, a municipal corporation, Defendant Appellee. ____________________ Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 11 C 08205 — Edmond E. Chang, Judge. ____________________ ARGUED NOVEMBER 2, 2015 — DECIDED FEBRUARY 3, 2016 ____________________ Before BAUER, POSNER, and KANNE, Circuit Judges. KANNE, Circuit Judge. On January 28, 2011, the Local School Council in charge of Kozminski Community Acade my voted to not renew the contract of long tenured principal Lionel Bordelon. Bordelon, who was 63 at the time, believed that his supervisor and Chief Area Officer for the Board of Education of the City of Chicago, Dr. Judith Coates, manipu lated and exercised undue influence over the Council’s deci 2 No. 14 3240 sion. Bordelon alleges that Coates did so because of his age, which, if true, would violate the Age Discrimination in Em ployment Act, 29 U.S.C. § 623. The district court granted summary judgment to the Board on Bordelon’s claim of age discrimination. We affirm. I. BACKGROUND A. Factual Background In 1993, Bordelon became the Principal of Kozminski Community Academy, a kindergarten through eighth grade school in the Chicago Public School system. Although the Board of Education of the City of Chicago (“Board”) super vises schools within its system, the Local School Council (“Council”) is responsible for hiring, evaluating, and renew ing contracts for principals in its area. The Board employs a Chief Area Officer to supervise the principals assigned to his or her area. In October 2009, the Board hired Coates to serve as Chief Area Officer for Area 15, making her Bordelon’s supervisor. According to Bordelon, Coates immediately “began taking steps to remove [him] from his position at Kozminski.” (Ap pellant’s Br. at 4.) When Coates began her new job, she inherited from her predecessor a list of five or six principals. According to Ta wana Sanders, Coates’s former executive assistant, it was a list of “older black principals to be disciplined.” Sanders re called that the list included Bordelon; Lori Lennox, principal of Doolittle Elementary; and Mary Rogers, principal of Em mett Till Academy. All three principals were in charge of schools that were performing in the bottom of Area 15 schools. No. 14 3240 3 In February 2010, Coates and the Board fired Sanders. Sanders testified that she “just felt that the Board wanted someone younger and brighter.” Brighter, she explained, meant that the replacement “has got more education, or maybe she has a field in that position, she could do a better job.” Coates’s efforts to remove Bordelon did not begin in ear nest until November 2010. On November 16, 2010, Coates sent Bordelon notice of a pre discipline hearing based on in subordination from September through November 2010. The notice contained the following allegations: (1) failing to re spond to a parent issue raised on November 2; (2) failing to comply with a request from September 20 to set up a parent meeting in October; (3) failing to schedule a meeting re quested in an October 25 email regarding the arrest of sever al Kozminski students; and (4) failing to respond to Coates’s email from November 4 regarding resolution of the three aforementioned matters. As a result of his hearing, Bordelon received a five day suspension without pay, which he ap pealed and never served. On December 7, 2010, Coates issued an evaluation of Bordelon that said he “needs improvement,” noting that Kozminski was on academic probation for the second year in a row with test scores trending downward. In December 2010, the Council had a meeting, which on ly five of the nine members attended. At this meeting, Coun cil member Everhart testified that Coates “more or less sug gested … [t]hat it was time for [Bordelon] to give it up.” Everhart clarified, however, that he thought Coates was not referring to Bordelon’s age but to Kozminski’s declining test scores. 4 No. 14 3240 Next, in a letter dated December 29, 2010, Coates reas signed Bordelon to home with full pay pending the outcome of an investigation into the following misconduct: (1) im properly replacing asbestos containing tile at Kozminski; (2) purchasing irregularities; and (3) tampering with school computers in a manner that impeded access to Kozminski’s records by the Board. James Ciesel, deputy general counsel for the Board, testified that he intended to prepare dismissal charges depending on the resolution of the investigation. Instead, on January 28, 2011, while Bordelon was still suspended with pay, the Council voted not to renew Bor delon’s contract. Three members voted against renewal, three voted in favor of renewal, and three abstained.1 The Council informed Bordelon that the decision not to renew was based on the following reasons: (1) “[f]ailure to provide adequate principal reports” to the Council; (2) not being evaluated as “highly qualified”; (3) “not meet[ing] the re quirements needed to have an effective and safe school envi ronment”; (4) “[l]ow test scores”; (5) “[d]isciplinary prob lems”; and (6) “[p]arents do not feel you are open and recep tive to them.” On February 28, 2011, Bordelon submitted his notice of retirement effective June 30, 2011, the end of his non renewed contract. 1 A majority of all the members of the Council constitutes a quorum to vote on the renewal of a principal’s contract. 105 ILCS 5/34 2.2(c). If a quorum is present, for the contract to be renewed, a majority of the full membership of the Council must vote in favor of renewal, which would ordinarily be six votes. Id. According to Bordelon, however, there was a vacancy on the Council, which meant that he only needed five votes. No. 14 3240 5 B. Procedural History On November 16, 2011, Bordelon filed suit against the Board alleging (1) discrimination on the basis of age in viola tion of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 623; (2) discrimination on the basis of race in vio lation of Title VII, 42 U.S.C. § 2000e 2, and 42 U.S.C. § 1981; (3) retaliation in violation of Title VII, the ADEA, and 42 U.S.C. § 1981; (4) constructive discharge; and (5) deprivation of due process. The Board moved for summary judgment on all of Bor delon’s claims, which the district court granted.2 With re spect to Bordelon’s age discrimination claim, the district court found that the evidence Bordelon claimed was direct proof of age discrimination “do[es] not support a finding of discriminatory intent.” Bordelon then filed a motion for reconsideration in which he pointed to more evidence that he thought supported his age discrimination claim. The district court excluded the ad ditional evidence as inadmissible hearsay, lacking founda tion, or too conclusory to withstand summary judgment. This appeal followed. II. ANALYSIS Bordelon’s sole issue on appeal is whether the district court properly granted summary judgment to the Board on his claim of age discrimination. We hold that it did. We review a district court’s grant of summary judgment de novo. Sartor v. Spherion Corp., 388 F.3d 275, 277 (7th Cir. 2 Bordelon only appeals the grant of summary judgment with respect to his claim of age discrimination. 6 No. 14 3240 2004). We view the facts, and all reasonable inferences drawn from those facts, in the light most favorable to the nonmoving party. Id. at 278. A district court’s evidentiary ruling to strike certain factual allegations, however, “is re viewed under a deferential abuse of discretion standard even on a motion for summary judgment.” Lucas v. Chi. Transit Auth., 367 F.3d 714, 720 (7th Cir. 2004). Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). This requires that “there be no genuine issue of material fact,” and “the mere existence of some alleged factual dispute” will not defeat summary judgment. Anderson v. Lib erty Lobby, Inc., 477 U.S. 242, 247–48 (1986). We have made clear that “[t]he evidence supporting a factual assertion must represent admissible evidence.” Judson Atkinson Candies, Inc. v. Latini Hohberger Dhimantec, 529 F.3d 371, 382 (7th Cir. 2008) (emphasis added). “[C]onclusory statements, not grounded in specific facts, are not sufficient to avoid summary judgment.” Lucas, 367 F.3d at 726; see also Gabrielle M. v. Park Forest Chi. Heights, Ill. Sch. Dist. 163, 315 F.3d 817, 822 (7th Cir. 2003) (“Rule 56 demands something more specific than the bald assertion of the general truth of a particular matter, rather it requires affidavits that cite specif ic concrete facts establishing the existence of the truth of the matter asserted.” (quotation marks omitted)). The ADEA prohibits an employer from “discriminat[ing] against any individual … because of such individual’s age.” 29 U.S.C. § 623(a)(1). Bordelon, however, has not sued the entity responsible for not renewing his contract—the Coun No. 14 3240 7 cil3—instead choosing to sue the Board, relying on a “cat’s paw” theory of liability. See Staub v. Proctor Hosp., 562 U.S. 411, 415–16 (2011). Therefore, to withstand summary judgment, Bordelon must point to evidence upon which a trier of fact could con clude that Coates (1) harbored discriminatory animus based on his age and (2) gave the Council information that influ enced its decision not to renew his contract. A. Coates’s Discriminatory Motivation A plaintiff may prove discriminatory intent under the ADEA by relying on either the direct method of proof or the indirect method of proof.4 Atanus v. Perry, 520 F.3d 662, 671 (7th Cir. 2008). Under the direct method of proof, the plaintiff may rely on either direct evidence or circumstantial evidence to show discriminatory motivation. Rudin v. Lincoln Land Cmty. Coll., 420 F.3d 712, 720–21 (7th Cir. 2005). Direct evidence, which is quite rare, is “an acknowledg ment of discriminatory intent by the defendant.” Id. (quoting Troupe v. May Dep’t Stores Co., 20 F.3d 734, 736 (7th Cir. 1994)). 3 The Council is a legal entity separate from the Board. 105 ILCS 5/34 2.1. It follows then that the Council can be sued in its own name for its con duct in not renewing a principal’s contract. See Asllani v. Bd. of Educ. of City of Chi., 845 F. Supp. 1209, 1219–20 (N.D. Ill. 1993). 4 Bordelon does not rely on the indirect method of proof, which would proceed under the familiar burden shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). 8 No. 14 3240 Circumstantial evidence is evidence that “allows the trier of fact to infer intentional discrimination by the deci sionmaker.” Id. (quotation marks omitted). We have recog nized four types of circumstantial evidence of intentional discrimination: (1) suspicious timing; (2) ambiguous statements or behavior towards other employees in the protected group; (3) evidence, statistical or otherwise, that similarly situated employees outside of the protect ed group systematically receive better treatment; and (4) evidence that the employer offered a pre textual reason for an adverse employment action. Dickerson v. Bd. of Trs. of Cmty. Coll. Dist. No. 522, 657 F.3d 595, 601 (7th Cir. 2011). Because Bordelon has chosen to proceed under the direct method of proof, he must point to admissible evidence, whether direct or circumstantial, of Coates’s discriminatory motivation based on age. 1. Evidence the District Court Admitted Before the district court—and on appeal—Bordelon re lied on several pieces of circumstantial evidence that he claims give rise to an inference of Coates’s age discrimina tion. First, he points to Everhart’s testimony that Coates “more or less suggested … [t]hat it was time for [Bordelon] to give it up.” This comment was made at a Council meeting in December 2010—shortly before it would vote on whether to renew Bordelon’s contract. Bordelon contends that this is an ambiguous statement akin to a company’s remarks that it would “not keep[] employees on until they reached sixty five.” Robinson v. PPG Indus., Inc., 23 F.3d 1159, 1164–65 (7th Cir. 1994). This “express remark[] about Plaintiff’s age” and No. 14 3240 9 its suspicious timing, Bordelon argues, could lead a trier of fact to infer that Coates held an age animus. (Appellant’s Br. at 5.) Coates’s statement is not an express remark about Bor delon’s age. Nor is it an ambiguous remark sufficient to give rise to an inference that Coates was motivated by age. Ever hart clarified that he thought this statement was referring to the school’s poor academic performance, not Bordelon’s age. Council member Chantelle Allen testified that Coates did not make any statements about Bordelon’s age at the meet ing. The statement made, unlike Robinson, does not even mention age. Coupled with the testimony of Everhart and Allen, no rational trier of fact could draw the inference that Coates was motivated to discriminate against Bordelon based on his age because of this statement. Bordelon also points to Sanders’s testimony that Coates had a list of five or six “older black principals to be disci plined.” This list does not support an inference of intentional discrimination based on age. First, there was a younger prin cipal included on the list; Lennox was only 48. Second, the two principals that Sanders identified as having been on the list were both, like Bordelon, in charge of poorly performing schools. Third, Sanders did not testify as to who the other two or three principals on the list were. Finally, the mere fact that older principals appeared on the list does not support an inference of age discrimination where most of the princi pals in Area 15 were older—only two of the sixteen principals were under 40 years old. Bordelon has offered no explana tion as to why these principals were on this list or whether they merited discipline. Therefore, Sanders’s testimony 10 No. 14 3240 about the list does not give rise to an inference of age dis crimination by Coates. Additionally, as evidence that Coates favored younger workers, Bordelon relies on Sanders’s testimony that Coates fired her and replaced her with someone “younger and brighter.” Sanders explained, however, that she meant that her replacement must have “more education, or maybe she has a field in that position, she could do a better job.” This testimony does not give rise to an inference that Coates was motivated by age discrimination where Sanders expressly disavowed that she was replaced because of her age. Instead, she testified that she was replaced by someone who could do a better job. Her impression that Coates wanted someone younger, without more, does not give rise to an inference of intentional discrimination. 2. Evidence the District Court Excluded Additional evidence that Bordelon cites on appeal was ei ther excluded by or not raised in front of the district court. Because Bordelon has not argued on appeal that the district court abused its discretion in excluding the following evi dence, he has waived any argument about its exclusion be ing improper. Lucas, 367 F.3d at 726. Assuming arguendo that Bordelon had not waived these arguments, the district court did not abuse its discretion in excluding this evidence, nor does the evidence to which he directs us give rise to an inference of discriminatory motiva tion sufficient to withstand summary judgment. Sanders testified that Coates would “pick on” principals sixty years of age or older “by saying that their paperwork was wrong.” Sanders testified that Coates would “make No. 14 3240 11 negative remarks about older principals to her team” but would not treat younger principals that way. Bordelon points to the similar testimony of Velma Cooksey, another older principal supervised by Coates. Cooksey testified that Coates “humiliated the only [sic] older principals” and “showed favoritism for the younger workers against the old er workers.” In Lucas, we concluded that the district court did not abuse its discretion in excluding statements that the supervi sor “treated African Americans ‘more harshly’ … [or] that African Americans were asked to change rail ties more fre quently, work longer sections of the track and were written up for reasons that non African Americans were not.” Lucas, 367 F.3d at 726. Cooksey’s and Sanders’s testimony is as conclusory as the testimony rejected in Lucas. Neither offers specific facts upon which to conclude Coates treated older principals in a dis criminatory manner. Instead, just like the statements exclud ed in Lucas, Sanders and Cooksey only offered sweeping generalizations about the way the protected class was treat ed. Because this evidence is not sufficient to preclude sum mary judgment, the district court did not abuse its discretion in excluding it. Finally, Bordelon points to the affidavit of Clarice Berry, president of the Chicago Principals and Administrators As sociation. Berry’s affidavit stated that “Coates treated older principals, including Plaintiff, in a discriminatory manner by giving schools with older principals less support than schools with younger principals. I know this from discus sions I had with older principals in Area 15. Younger princi 12 No. 14 3240 pals did not mention to me that they experienced a lack of curriculum support from Coates.” Berry’s testimony is inadmissible hearsay and was properly excluded. Fed. R. Evid. 801(c), 802. Bordelon argues that Berry’s testimony is not hearsay because it falls under the exclusion from hearsay for an opposing party’s state ment. Fed. R. Evid. 801(d)(2). The opposing party in this case is the Board. Berry’s testimony comes from statements made by other principals in Area 15. Bordelon has not alleged that the Board adopted the other principals’ statements or au thorized the principals to speak on its behalf. Presumably, Bordelon is arguing that these constitute statements made by Board employees “on a matter within the scope of that rela tionship,” and so their statements should be admissible against the Board under Rule 801(d)(2)(D). To fall within the exclusion from hearsay, however, the statements made by the other principals must be within the scope of their employment relationship with the Board. “[N]ot everything that relates to one’s job falls within the scope of one’s agency or employment.” Williams v. Pharmacia, Inc., 137 F.3d 944, 950 (7th Cir. 1998). An employee “need not have been personally involved in that action, but her duties must encompass some responsibility related to ‘the deci sionmaking process affecting the employment action.’” Ste phens v. Erickson, 569 F.3d 779, 793 (7th Cir. 2009) (quoting Simple v. Walgreen Co., 511 F.3d 668, 672 (7th Cir. 2007)). In Williams, we held that the complaints of sex discrimi nation made by five other female employees did not fall within Rule 801(d)(2)(D) because “[n]one of the women were agents of [the defendant] for the purpose of making mana gerial decisions affecting the terms and conditions of their No. 14 3240 13 own employment.” 137 F.3d at 950. The same is true in this case. The complaints of age bias made by the other princi pals do not fall within the scope of their employment be cause they did not have authority to make managerial deci sions on behalf of the Board regarding their own employ ment. Accordingly, the exclusion from hearsay under Rule 801(d)(2) is inapplicable, and the district court properly ex cluded Berry’s testimony. In conclusion, Bordelon has not constructed “a convinc ing mosaic of circumstantial evidence that [would] allow[] a jury to infer intentional discrimination by the decisionmak er.” Makowski v. SmithAmundsen LLC, 662 F.3d 818, 824 (7th Cir. 2011) (quotation marks omitted). Therefore, the district court properly granted summary judgment in favor of the Board. B. Coates’s Influence on the Council’s Decision In order to maintain his suit against the Board for the Council’s decision, Bordelon must also show that Coates in fluenced the Council’s decision by relying on the cat’s paw theory of liability. “[C]at’s paw liability may be imposed on an employer where the plaintiff can show that an employee with discrimi natory animus provided factual information or other input that may have affected the adverse employment action.” Smith v. Bray, 681 F.3d 888, 897 (7th Cir. 2012) (quotation marks omitted and emphasis added). Because Coates and the Board were not the decision makers in this case, Bor delon must show that Coates bore a discriminatory animus that influenced the Council. Bordelon did not point to evi dence “that the biased subordinate actually harbored dis 14 No. 14 3240 criminatory animus against the victim of the subject em ployment action,” so the cat’s paw theory of liability cannot save his case from summary judgment. Johnson v. Koppers, Inc., 726 F.3d 910, 914 (7th Cir. 2013). Furthermore, there is substantial evidence in the record that the Council had independent reasons for choosing not to renew Bordelon’s contract, making it quite unlikely that Coates influenced its decision. Accordingly, the district court properly granted the Board’s motion for summary judgment. III. CONCLUSION For the foregoing reasons, the judgment of the district court is AFFIRMED.
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