Robertson v. Chicago Public Schools

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

DEIDRE ROBERTSON, )

)

Plaintiff, )

) Case No. 13 C 3205

v. )

) Judge Joan B. Gottschall

SUSAN LOFTON and BOARD OF )

EDUCATION OF THE CITY OF CHICAGO, )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

In the 2010–11 school year, plaintiff Deidre Robertson (“Robertson”), an African

American high school English teacher in the Chicago Public Schools (“CPS”), was suspended

twice for alleged misconduct and received the first “unsatisfactory” performance rating of her

CPS career on June 2, 2011; defendant Board of Education of the City of Chicago (“the Board”)

issued a “warning resolution” to Robertson based on those two incidents in January 2012. See

Resp. to JSUMF ¶¶ 4–6, 9, 10, 16, 34–37, 45–48, 49, 56, Defs.’ Resp. to SAMF ¶¶ 5–6.1 Due to

declining enrollment in the Senn Achievement Academy (“Senn”) where she taught (except for

one class), the unsatisfactory rating led to her being laid off, along with eight other teachers, in

July 2011 and transferred to the “reassigned teacher pool” (“the pool”) from which she has since

worked as a substitute teacher in other CPS schools. Resp. to JSUMF ¶¶ 26, 64–66, 69–70.

Robertson filed suit against the Board and Senn’s principal in the 2010–11 school year, Susan

Lofton (“Lofton”), Resp. to JSUMF ¶ 3.

1 Defendants submitted a joint Local Rule 56.1(a)(3) statement of undisputed material facts “JSUMF”, ECF

No. 224. As Local Rule 56.1(b)(3)(C) allows, plaintiff combined her response to the JSUMF with her Local Rule

56.1(b)(3) statement of additional material facts. ECF No. 226. Because the paragraph numbering in the combined

document restarts, citations to plaintiff’s responses to the JSUMF refer to the paragraphs on pages 1–15 of ECF No.

226. References to “SAF” mean the sequence of paragraphs that begins on page 15 of ECF No. 226. See also Resp.

to SAF, ECF No. 228 (utilizing this numbering).

Lofton and the Board have filed separate motions for summary judgment. They partially

incorporate each other’s arguments, and they collectively seek dismissal of all thirteen counts of

Robertson’s Third Amended Complaint (“TAC”), ECF No. 68. Plaintiff responds by defending

only two counts, her employment discrimination claims brought in Counts I and II under

42 U.S.C. § 1981 and Title VII of the Civil Rights Act of 1964, as amended, (“Title VII”)

42 U.S.C. § 2000e–2000e-17. Primarily because Robertson has identified no similarly situated

non-African American employee who received more favorable treatment, the court grants the

motions for summary judgment.

I. BACKGROUND

Except where otherwise noted, the following facts are undisputed. Robertson has worked

as a CPS teacher since August 2004. Resp. to JSUMF ¶ 8. She taught English at two high

schools before Senn. Id. ¶¶ 9–13. She transferred to Senn in the 2007–08 school year.2 Id. ¶ 14.

Her first principal, Richard Norman (“Norman”), rated her “satisfactory.” Id. ¶¶ 16, 17.

Senn’s campus housed three, distinct schools, Senn High School, Senn Achievement

Academy, and Rickover Naval Academy; the high school and achievement academy shared

Lofton as a principal in 2010–11. See Resp. to JSUMF ¶¶ 21–22. Carter Carey (“Carey”), a

Caucasian man, served as Senn’s assistant principal in the 2010–11 school year. Resp. to SAF ¶¶

8–10.

2 Defendants submit evidence of other alleged incidents earlier in Robertson’s career and that during Norman’s

tenure, he received complaints from students and parents about Robertson stating that she used profanity in the

classroom and hit students. See Resp. to JSUMF. ¶¶ 18–20. But, as Robertson observes, the warning resolution and

suspension notices do not mention those incidents. See Resp. to SAF ¶ 19 (citing Defs.’ Ex. O, R, S). They do not,

therefore, factor into the court’s summary judgment analysis.

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“Lofton received multiple complaints from students, staff and parents regarding Plaintiff

swearing in front of students (e.g. fuck, shit, bullshit), threatening students, having verbal

confrontations with students, calling students and parents names (e.g. retarded, bitch, jackass,

ghetto, Moby Dick great white whale), touching students, throwing a pencil and pencil box at a

student, and speaking unprofessionally to students, parents and staff.” Resp. to JSUMF ¶ 27

(undisputed; internal citations to exhibits omitted). Lofton received a verbal complaint from a

parent about Robertson threatening a parent; after a tenured teacher and student teacher

corroborated the complaint, Lofton issued Robertson a cautionary warning. Id. ¶¶ 28–30. As for

Carey, Robertson’s proposed comparator, Lofton received no complaints about him swearing in

front of students or parents and no complaints about him using corporal punishment. Resp. to

JSUMF ¶¶ 59–60. Carey cursed in front of students, though Robertson does not recall who was

principal at the time, Robertson Dep. 404:1–405:14, and had physical contact with students, SAF

¶ 13. Robertson’s unrebutted testimony is that the physical contact occurred when Carey tried to

break up fighting students. Resp. to JSUMF ¶ 60 (citing Robertson Dep. 407:11–16).

A. The “R.S. Incident”

Robertson was involved in a physical altercation with a student, R.S., on October 1, 2010.

Resp. to JSUMF ¶ 31. What happened and whether Robertson acted in self-defense is disputed.

See, e.g., SAF ¶¶ 24–25. One eyewitness reported not seeing Robertson come into physical

contact with R.S. SAF ¶ 20. And despite the incident, R.S. remained in Robertson’s class. Id. ¶

21; see also id. ¶¶ 22–23 (stating that one incident report stated that Robertson was

unprofessional with R.S.’ father, but that he later wrote a letter on Robertson’s behalf).

Robertson also notes that an incident report stated that the Illinois Department of Children and

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Family Services (“DCFS”) would be contacted, but DCFS has no record of any contact. See id.

¶¶ 26–27.

A Board investigator concluded that there was credible evidence Robertson grabbed

R.S.’s right arm hard enough to cause abrasions. Resp. to JSUMF ¶ 32. Following the Board’s

recommendation, Lofton suspended Robertson for fifteen days for use of corporal punishment.

Id. ¶ 34. Robertson followed the appeal process, and after a hearing, the Board reduced the

length of her suspension to ten days. See id. ¶¶ 35–37.

B. The May 2011 Incident and the Warning Resolution

In May 2011, a student complained to Lofton that Robertson was dropping f-bombs in

class. Resp. to JSUMF ¶ 38. Lofton went to Robertson’s classroom and brought all of the

students in the front row back to “the office.” Id. ¶ 39. Lofton asked the students to write

something about the incident, though whether she told them to write what happened or

“something bad” about Robertson, as one student reported, is disputed. See id. ¶ 40 and material

cited; see also id. ¶¶ 41–42 (factual disputes over whether Lofton left the room and whether

students were told not to talk among themselves). Keeping these disputes in mind, each student

wrote that Robertson had said “fuck” in class. Id. ¶ 43. Again, Robertson disputes this. In

addition to disputing what Lofton told the students, Robertson asserts that there are discrepancies

in the letters’ accounts of what happened. Resp. to SAF ¶ 30.

After giving Robertson a chance to tell her side of the story, Resp. to JSUMF ¶ 44, Lofton

suspended Robertson for three days for using profanity, id. ¶ 45. Robertson appealed; the Board

held a hearing and upheld the suspension. Id. ¶¶ 46–48. Citing the R.S. incident and the May

2011 incident, the Board issued a resolution warning Robertson about her conduct (“warning

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resolution”) on January 25, 2012. Id. ¶ 49 (citing Ex. A Lofton Dep., Ex. S Jan. 25, 2012

Warning Resolution).

C. Robertson’s 2010–11 Performance Evaluation

In the 2010–11 school year, the Board used a four-level evaluation system under which

teachers received a rating of superior, excellent, satisfactory, or unsatisfactory.3 Resp. to JSUMF

¶ 50. As required by Board policy and the applicable union contract, Lofton and Carey observed

Robertson three times during the school year. Resp. to JSUMF ¶ 51.

Assistant Principal Carey observed Robertson on December 2, 2010. Id. ¶ 52. His notes

identify her weaknesses as interactions with students, completion of lesson plans, consistent

student assessment, and recording student grades. Id. (citing Ex. T at 001732). Lofton observed

Robertson teach on April 26, 2011. Id. ¶ 53. She noted these weaknesses: “not writing her own

lesson plans, actual lesson was disjointed, nonfiction graded reading strategies not evident,

mistakes in vocabulary and parts of speech, low rigor, reliance on literal level items, and the

class did not start on time.” Id. citing (Ex. B ¶ 23; Ex. U at 001723). Lofton noted similar

weaknesses after the third observation on May 31, 2011. See id. ¶ 54.

Based on those observations, Lofton rated Robertson “unsatisfactory” on June 2, 2011.

Id. ¶ 56. Robertson disagreed and refused to sign the performance review. SAF ¶ 3.

Due to projected under enrollment, about nine Senn teachers lost their jobs in layoffs at

the end of the 2010–11 school year. Resp. to JSUMF ¶ 62. Under Board policy, an

“unsatisfactory” rating is used as a factor when deciding which teachers to lay off. Id. ¶ 63.

Robertson “was one of the teachers laid off based on her ‘Unsatisfactory’ rating,” id. ¶ 64, after

3 The record does not make clear whether the Board used the same system in prior years, though the fact is

immaterial.

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which she was put in the pool and worked as a substitute in subsequent years. See id. ¶¶ 65–66,

69–70 (stating that Robertson worked every school day from the beginning of the 2012–13

school year through the end of the 2014–15 school year).

D. Lofton’s Treatment of Other Teachers

Defendants submit undisputed evidence of Lofton’s conduct toward other teachers in the

2010–11 school year. Lofton rated four other Senn teachers unsatisfactory that year. Resp. to

JSUMF ¶ 61. The other four were white. Id.

Lofton suspended a white teacher and requested a warning resolution when students were

chemically burned during a class. Resp. to JSUMF ¶ 57. Lofton did the same thing to a white

teacher who brought pornography to class. Id. ¶ 58.

II. SUMMARY JUDGMENT STANDARD

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). A genuine dispute as to any material fact exists if “the evidence is such that a reasonable

jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 248 (1986). In resolving summary judgment motions, “facts must be viewed in the light

most favorable to,” and all reasonable inferences from that evidence must be drawn in favor of,

the nonmoving party–but “only if there is a ‘genuine’ dispute as to those facts.” Scott v. Harris,

550 U.S. 372, 380 (2007); Blasius v. Angel Auto., Inc., 839 F.3d 639, 644 (7th Cir. 2016) (citing

Cairel v. Alderden, 821 F.3d 823, 830 (7th Cir. 2016)).

The party seeking summary judgment has the burden of establishing that there is no

genuine dispute as to any material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986);

Modrowski v. Pigatto, 712 F.3d 1166, 1168 (7th Cir. 2013) (explaining that Rule 56 “imposes an

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initial burden of production on the party moving for summary judgment to inform the district

court why a trial is not necessary” (citation omitted)). After “a properly supported motion for

summary judgment is made, the adverse party must” go beyond the pleadings and “set forth

specific facts showing that there is a genuine issue for trial.” Anderson, 477 U.S. at 255

(quotation omitted); see also Modrowski, 712 F.3d at 1169 (stating party opposing summary

judgment “must go beyond the pleadings (e.g., produce affidavits, depositions, answers to

interrogatories, or admissions on file), to demonstrate that there is evidence upon which a jury

could properly proceed to find a verdict in her favor”) (citations and quotations omitted).

Summary judgment is warranted when the nonmoving party cannot establish an essential

element of her case on which she will bear the burden of proof at trial. Kidwell v. Eisenhauer,

679 F.3d 957, 964 (7th Cir. 2012).

III. DISCRIMINATION CLAIMS

Robertson pleads Title VII and § 1981 claims for race discrimination claims in Counts I

and II respectively. Robertson and defendants proceed under the burden-shifting framework of

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). In 2016, the Seventh Circuit did away

with the distinction between “direct” and “indirect” methods of proving intentional

discrimination. Ortiz v. Werner Enters., Inc., 834 F.3d 760, 765–66 (7th Cir. 2016). But the

Seventh Circuit took care to stress that its decision did “not concern McDonnell Douglas or any

other burden-shifting framework, no matter what it is called as a shorthand.” Id. at 766 (“[A]ll

evidence belongs in a single pile and must be evaluated as a whole. That conclusion is consistent

with McDonnell Douglas and its successors.”); see also Golla v. Office of Chief Judge of Cook

Cnty., 875 F.3d 404, 407 (7th Cir. 2017) (quoting David v. Bd. of Trs. of Cmty. Coll. Dist. No.

508, 846 F.3d 216, 224 (7th Cir. 2017)) (explaining that after Ortiz, the framework remains “a

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means of organizing, presenting, and assessing circumstantial evidence in frequently recurring

factual patterns found in discrimination cases”).

Furthermore, the parties agree that the McDonnell Douglas framework applies to

Robertson’s Title VII and § 1981 claims. See, e.g., Riley v. Elkhart Cmty. Schs., 829 F.3d 886,

892 (7th Cir. 2016); Hartzol v. McDonald’s Corp., 437 F. Supp. 2d 805, 814 (N.D. Ill. 2006).

Though the court employs the McDonnell Douglas framework because the parties do, it

remains mindful that the overarching question “is simply whether the evidence would permit a

reasonable factfinder to conclude that the plaintiff’s race, ethnicity, sex, religion, or other

proscribed factor caused the discharge or other adverse employment action.” Ortiz, 834 F.3d at

765. The framework has three steps. The following concisely describes them:

Generally speaking, under McDonnell Douglas, the plaintiff has the initial

burden of establishing that “(1) she is a member of a protected class, (2) she

performed reasonably on the job in accord with her employer[’s] legitimate

expectations, (3) despite her reasonable performance, she was subjected to

an adverse employment action, and (4) similarly situated employees outside

of her protected class were treated more favorably by the employer.”

Andrews v. CBOCS West, Inc., 743 F.3d 230, 234 (7th Cir. 2014) (internal

quotation marks omitted), overruled on other grounds by Ortiz, 834 F.3d at

765. “If the plaintiff satisfies that burden, then the employer must articulate

a legitimate, nondiscriminatory reason for the adverse employment action, at

which point the burden shifts back to the plaintiff to submit evidence that

the employer’s explanation is pretextual.” Id.

David, 846 F.3d at 225 (alteration in original).

The first component of Robertson’s prima facie case is not in dispute. Defendants do not

dispute that Robertson, an African American woman, is a member of a protected group. Resp. to

SAF ¶ 1. Robertson has not, however, presented sufficient evidence on a portion of the second

factor, and the evidence she points to does not adequately establish that a similarly situated non-

African American individual was treated more favorably than she was.

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A. Meeting the Employer’s Legitimate Expectations

Robertson points to relatively little evidence to show that she met her employer’s

legitimate expectations. See Resp. to Mot. Summ. J. 7. She cites: (1) her charge of

discrimination filed with the Equal Employment Opportunity Commission (“EEOC”) which so

recites, SAF ¶ 2 (citing Pl.’s Ex. 2 at 1); and (2) undisputed evidence that she refused to sign

Lofton’s June 2, 2011, evaluation, SAF ¶ 3.

Even seen favorably to Robertson, this evidence amounts to her opinion of her own

performance. A plaintiff’s “own opinion about his work performance is irrelevant” and doesn’t

create a fact issue. Sklyarsky v. Means-Knaus Partners, L.P., 777 F.3d 892, 897 (7th Cir. 2015)

(citing Sublett v. John Wiley & Sons, Inc., 463 F.3d 731, 740 (7th Cir. 2006) and Peele v. Country

Mut. Ins. Co., 288 F.3d 319, 329 (7th Cir. 2002)) (affirming summary judgment for employer).

Robertson therefore fails to create a fact issue on the second McDonnell Douglas factor to the

extent she attacks Lofton’s assessment of her job performance. See, e.g., Kralka v. Bd. of Trs. of

Cmty. Coll. Dist. No. 508, 75 F. Supp. 3d 909, 914–15 (N.D. Ill. 2014) (holding teacher failed to

create fact issue on whether she was meeting employer’s legitimate expectations).

But Robertson’s briefing can be read as raising the distinct claim that her employer

applied its legitimate expectations in a discriminatory way. The Seventh Circuit has held that

“where the issue is whether the plaintiff was singled out for discipline based on a prohibited

factor, it ‘makes little sense . . . to discuss whether she was meeting her employer’s reasonable

expectations.’” Curry v. Menard, Inc., 270 F.3d 473, 477–78 (7th Cir. 2001) (quoting Flores v.

Preferred Technical Grp., 182 F.3d 512, 515 (7th Cir. 1999)) (alteration in original). Stated more

generally, “[w]hen a plaintiff produces evidence sufficient to raise an inference that the employer

applied its legitimate expectations in a disparate manner, the second and fourth prongs of

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McDonnell Douglas merge, allowing the plaintiff to establish a prima facie case by establishing

that similarly situated employees were treated more favorably.” Taylor-Novotny v. Health

Alliance Med. Plans, Inc., 772 F.3d 478, 492 (7th Cir. 2014) (quoting Grayson v. O’Neill, 308

F.3d 808, 818 (7th Cir. 2002)). Robertson does not concede that the facts of the R.S. incident

and the May 2011 incident are as defendants claim. See Resp. to Mot. Summ. J. 13–14.

Nevertheless, the thrust of her argument is that in the face of evidence that was “inconclusive”

and contradictory, Lofton and other Board employees disciplined and evaluated her more harshly

than other employees due to her race. See id. Given the weight Lofton’s subjective judgment

carried in Robertson’s evaluation and the disciplinary decisions, the legitimate expectations

prong merges with the fourth McDonnell Douglas factor for Robertson because Lofton made

those decisions. See Taylor-Novotny, 772 F.3d at 491–92; Oest v. Ill. Dep’t of Corr., 240 F.3d

605, 612 n. 3 (7th Cir. 2001), overruled on other grounds by Ortiz, 834 F.3d 760 (holding

plaintiff didn’t have to prove she was meeting employer’s legitimate expectations because the

“people judging [the plaintiff’s] performance were the same she accused of discriminating

against her” (citing Flores, 182 F.3d at 515)); Kralka, 75 F. Supp. 3d at 915 (same as in Taylor-

Novotny).

B. Similarly Situated Employee Treated More Favorably

The fourth factor in the McDonnell Douglas prima facie case requires the plaintiff to

come forward with enough evidence to permit a jury to conclude that “similarly situated

employees outside of her protected class were treated more favorably by the employer.”

Andrews, 743 F.3d at 235 (quoting Ptasnik v. St. Joseph Hosp., 464 F.3d 691, 696 (7th Cir.

2006)). “[W]hile ‘they need not be identical in every conceivable way,’ similarly situated

employees ‘must be directly comparable to the plaintiff in all material respects.’” Skiba v. Ill.

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Cent. R.R. Co., 884 F.3d 708, 723 (7th Cir. 2018) (quoting Coleman v. Donahoe, 667 F.3d 835,

846 (7th Cir. 2012)). The number of relevant factors needed to make two employees comparable

“depends on the context of the case.” Id. (quoting Radue v. Kimberly-Clark Corp., 219 F.3d 612,

617 (7th Cir. 2000)), overruled on other grounds by Ortiz, 834 F.3d 760). “In the usual case a

plaintiff must at least show that the comparators (1) dealt with the same supervisor, (2) were

subject to the same standards, and (3) engaged in similar conduct without such differentiating or

mitigating circumstances as would distinguish their conduct or the employer’s treatment of

them.” Id. (quoting Coleman, 667 F.3d at 847) (internal alteration and quotations omitted).

Robertson puts forward one comparator: Carey. Resp. to Mot. Sum. J. 9. Carey, a white

male, worked with Lofton in his role as Senn’s assistant principal in the 2010–11 schoolyear.

See Resp. to SAF ¶¶ 8–11. Since Robertson and Carey reported to Lofton, the fact that Carey

supervised Robertson does not, as defendants suggest, prove dispositive of all of her claims. It

might when comparing applicants for a job because supervisors often have greater experience

than their subordinates. See Patterson v. Avery Dennison Corp., 281 F.3d 676, 680 (7th Cir.

2002). In this disparate discipline case, Robertson and Carey “dealt with the same supervisor”

(Lofton) and, with inferences favorable to Robertson, “were subject to the same standards” when

it came to physical contact with students and cursing in their presence. Skiba, 884 F.3d at 723

(quoting Coleman, 667 F.3d at 847).

That does not hold for Lofton’s assessment of Robertson’s teaching, however. On that

score, Carey sat in on Robertson’s classroom evaluations, but there is no evidence that Carey

taught that year or that Lofton evaluated his teaching. See Resp. to JSUMF ¶¶ 51, 52; see also

id. ¶ 61 (Lofton rated a total of five Senn teachers unsatisfactory in the 2010–11 school year).

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Hence Carey cannot be a similarly situated comparator for Lofton’s unsatisfactory rating of

Robertson. See Patterson, 281 F.3d at 680.

Robertson points to evidence that Carey cursed in the presence of students, SAF ¶ 12, but

as defendants point out, the evidence shows neither that it happened in Lofton’s presence nor that

she was informed of it. See Robertson Dep., ECF No. 224-2 Ex. C 404:1–05:14; Resp. to

JSUMF ¶ 59 (undisputed that Lofton received no complaints that Carey used vulgar language in

front of students or parents). Carey also had physical contact with Senn students. SAF ¶ 13.

Indeed, it is undisputed that “Lofton also never received complaints that Carey . . . used corporal

punishment on a student or was involved in an altercation with a student which resulted in injury

to the student.” Resp. to JSUMF ¶ 60 (citation omitted). And Robertson’s testimony that the

only physical contact between Carey and Senn students “she was aware of occurred when Carey

. . . was attempting to intervene when students were fighting” stands uncontradicted and

undisputed on this record. Id. (citing Robertson Dep. 407:11–16).

Even taking all that evidence in the light most favorable to Robertson, it does not create a

fact issue on whether Carey is similarly situated to her. Since this is a disparate discipline case,

the court evaluates whether Carey “‘engaged in comparable rule or policy violations’ and

received more lenient discipline.” Coleman, 667 F.3d at 850 (quoting Naik v. Boehringer

Ingelheim Pharms., Inc., 627 F.3d 596, 600 (7th Cir. 2010)). Preddie v. Bartholomew

Consolidated School Corp., 799 F.3d 806 (7th Cir. 2015), is illustrative. In Preddie, the Seventh

Circuit affirmed entry of summary judgment dismissing a teacher’s race-discrimination claims

brought after his school district did not renew his contract at the end of the 2010–11 school year.

Id. at 808, 816. The teacher, an African American man, who had been absent twenty-three times

that year due to his and his son’s medical issues, see id. at 808, pointed to evidence that white

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teachers were not terminated despite their medical-related absences. See id. at 815–16. The

Seventh Circuit explained that the evidence the teacher cited did not make “clear . . . whether

the comparator teachers had similar performance records” stretching back as far as the plaintiff’s.

Id. at 816. Robertson’s evidence suffers from a similar lack of clarity. The undisputed evidence

ultimately does not show more than that Carey swore in students’ presence and had physical

contact with students but that Lofton received no complaints about it. SAF ¶¶ 12–13; Resp. to

JSUMF ¶¶ 59–60. Given the specificity in the record about the R.S. incident and the May 2011

incident, Robertson has not provided enough information to make clear that Carey engaged in

substantially comparable rule or policy violations. See Preddie, 799 F.3d at 816. Accordingly,

like the claims in Preddie, Robertson’s discrimination claims must be dismissed. See id.; see

also Kralka, 75 F. Supp. 3d at 915–16 (granting summary judgment to school because “[t]hese

teachers’ minimal (less than fifteen minutes) and infrequent tardiness is easily distinguishable

from Plaintiff’s routine tardiness of one hour”); Hopkins v. Bd. of Educ. of City of Chi.,73 F.

Supp. 3d 974, 992–93 (N.D. Ill. 2014) (holding CPS teacher accused of using corporal

punishment identified no comparator in part because she “cannot point to the investigation itself

as being motivated by retaliation [and] because she cannot identify similar complaints about

other teachers. [The plaintiff] was the subject of far more parent complaints than any other

teacher, so she cannot identify similarly situated teachers who were not investigated”).

IV. COUNTS III–XIII

There remain defendants’ requests for summary judgment on the other eleven counts

pleaded in the TAC. Robertson does not discuss these counts in her response to defendants’

motions for summary judgment, and she twice states that she opposes summary judgment “as to

all counts related to employment discrimination.” ECF No. 225 at 1, 15; see also id. at 6.

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Nonetheless, defendants cannot win summary judgment by default. Gerhartz v. Richert,

779 F.3d 682, 686 (7th Cir. 2015); Tobey v. Extel/Jwp Inc., 985 F.2d 330, 332 (7th Cir. 1993).

This court must still “ascertain that judgment is proper as a matter of governing law.” Gerhartz,

779 F.3d at 686 (quoting Johnson v. Gudmundsson, 35 F.3d 1104, 1112 (7th Cir. 1994))

(alteration omitted). Robertson responded timely to defendants’ Local Rule 56.1(a)(3) statement

of undisputed material facts, so her partial failure to engage with defendants’ legal arguments

means that she cannot “elaborate on the legal theories presented in [her] complaint, or . . . raise

any new [legal theories] . . . .” Johnson, 35 F.3d at 1112 (citation omitted). The court continues

to view all facts in the light most favorable to Robertson and draw reasonable inferences in her

favor. Perez v. Super Maid, LLC, 55 F. Supp. 3d 1065, 1071 (N.D. Ill. 2014) (citing Keeton v.

Morningstar, Inc., 667 F.3d 877, 844 (7th Cir. 2012)). As the following paragraphs discuss,

Robertson’s failure to include evidence material to some of these counts proves dispositive.

The court dismissed several of the claims (with and without prejudice) pleaded in

Robertson’s first amended complaint (“FAC”) in its order entered October 25, 2013. Robertson

v. Lofton, No. 13 C 3205, 2013 WL 5796780, motion for reconsideration granted in part, ECF

No. 41 (N.D. Ill. Dec. 20, 2013). Robertson repleaded the dismissed counts in the TAC, noting

the ones the court had dismissed with prejudice. The court now considers the claims it has not

already dismissed.

Robertson pleads a claim for a violation of her right to procedural due process in

Count III. The procedural component of due process requires “a deprivation of life, liberty, or

property ‘be preceded by notice and opportunity for hearing appropriate to the nature of the

case.’” Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542 (1985) (quoting Mullane v.

Cent. Hanover Bank & Trust Co., 339 U.S. 306, 313 (1950)). Robertson’s layoff did not deprive

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her of a property interest recognized by the Fourteenth Amendment. Price v. Bd. of Educ. of City

of Chi., 755 F.3d 605, 610 (7th Cir. 2014) (holding that “tenured teachers no longer have a

property interest in their jobs that allows them to seek and fill any vacancies” anywhere in the

system). And government defamation, without more, does not implicate a liberty interest. Khan

v. Bland, 630 F.3d 519, 534 (7th Cir. 2010). Assuming, without deciding, that Robertson’s

suspensions and the warning resolution deprived her of property, the undisputed facts establish

that she received notice of the disciplinary actions taken against her and an opportunity to be

heard through the Board’s multi-level appeal process and that Lofton and Carey discussed their

classroom observations with Robertson. See Resp. to JSUMF ¶¶ 35–37, 44, 46–48, 55; SAF ¶ 3.

Given Robertson’s failure to articulate at summary judgment how the notice and hearing was

insufficient, Count III is dismissed. See Bartlett v. City of Chi. Sch. Dist. #299, 40 F. Supp. 3d

959, 965 (N.D. Ill. 2014), appeal docketed No. 14-1942 (7th Cir. Apr. 28, 2014) (citing

Loudermill, 470 U.S. at 546).

Robertson pleads a claim for a deprivation of substantive due process in Count IV. She

premises this claim on her alleged “liberty interest and property interest in her employment as a

teacher.” TAC ¶ 145. Robertson offers no argument to distinguish Price however. See also

Fennerty v. Board of Educ. of City of Chi., 577 F. App’x 599, 599–600 (7th Cir. 2014). Count IV

must accordingly be dismissed.

Next are Robertson’s conspiracy claims under state and federal law pleaded in Count V.

Robertson has identified no evidence from which the existence of a conspiratorial agreement can

be inferred, and nothing leaps from the parties’ Local Rule 56.1 Statements. Robertson has

therefore failed to carry her summary judgment burden on Count V. See, e.g., Amundsen v. Chi.

Park Dist., 218 F.3d 712, 718 (7th Cir. 2000). In any event, because the underlying claims will

15

be dismissed, the conspiracy claims must suffer the same fate. See, e.g., Forgue v. City of Chi.,

873 F.3d 962, 970 (7th Cir. 2017).

In Counts VI and VII Robertson brings claims under the Illinois Personnel Records

Review Act (“IPRRA”), 820 Ill. Comp. Stat. 40/13. These counts concern Robertson’s alleged

efforts to obtain a complete copy of her personnel records from defendants and to expunge

allegations of child abuse from Board records. See TAC ¶¶ 158–70, 171–76. See Bogosian v.

Bd. of Educ. of Cmty. Unit Sch. Dist. 200, 134 F. Supp. 2d 952, 960 (N.D. Ill. 2001). Robertson

puts forward no evidence to support the factual allegations made in the TAC at summary

judgment, and so Counts VI and VII must be dismissed. See Celotex, 477 U.S. at 324.

The court can treat Counts VIII and X, both brought against Lofton, together. Count VIII

asserts a claim against Lofton for tortious interference with contract, and Count X claims that

Lofton defamed Robertson. Lofton claims, as she has before, that the Tort Immunity Act, 745 Ill.

Comp. Stat. 10/1–101 et seq., bars both claims. The Tort Immunity Act says that:

A public employee acting in the scope of his employment is not liable for

an injury caused by his negligent misrepresentation or the provision of

information either orally, in writing, by computer or any other electronic

transmission, or in a book or other form of library material.

745 Ill. Comp. Stat. 10/2–210. It is undisputed here that Lofton acted in the scope of her

employment at all relevant times. This court refused to dismiss Robertson’s defamation claim

with prejudice at the pleading stage because it was possible that Robertson could show that

Lofton acted maliciously, not just negligently. Robertson, 2013 WL 5796780, at *7–8 (citing

Douglas v. Lofton, No. 12 C 8592, 2013 WL 2156053, at *6 (N.D. Ill. May 17, 2013)). But at

summary judgment Robertson points to no evidence to support her theory of malice. In any

event, even if she could show malice, which she has not, it is not clear that such evidence could

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even help her. See id. at *9 (explaining that even a showing of malice does not overcome the

absolute privilege for statements made in the course of a government official’s duties).

This brings the court to the claim that the Board negligently supervised Lofton in

Count IX. To defeat summary judgment, Robertson must come forward with evidence that:

“(1) the defendant-employer knew or should have known that an employee had a particular

unfitness for his position so as to create a danger of harm to third persons; (2) that such particular

unfitness was known or should have been known at the time of the hiring, retention, or failure to

supervise; and (3) that this particular unfitness proximately caused the plaintiff’s injury.”

Anicich v. Home Depot U.S.A., Inc., 852 F.3d 643, 649 (7th Cir. 2017) (citing Van Horne v.

Muller, 705 N.E.2d 898, 904 (Ill. 1998) and Platson v. NSM, Am., Inc., 748 N.E.2d 1278, 1284

(Ill. App. Ct. 2001)). The third element requires a showing that “the employee’s particular

unfitness ‘rendered the plaintiff’s injury foreseeable to a person of ordinary prudence in the

employer’s position.’” Id. (quoting Platson, 748 N.E.2d at 1284). Robertson does not say what

made Lofton particularly unfit in the TAC or in her response to the instant motions much less

point to evidence from which board employees could have learned that she was particularly

unfit. Cf. Platson, 748 N.E.2d at 1285 (holding that allegations that supervisor witnessed a man

inappropriately touching a 16-year-old intern stated a negligent supervision claim). Because

Robertson failed to carry her summary judgment burden, Count IX is dismissed.

The same fate befalls Robertson’s breach-of-contract claim in Count XI. Robertson

pleaded that after she was placed in the pool, she learned from a principal that a “do not hire”

notation appeared on her personnel file. TAC ¶¶ 200–04. Robertson does not go beyond the

pleadings, Celotex, 477 U.S. at 324, and point to competent evidence from which a jury could

find for her. She identifies nothing proving that she had a contract with the Board once she was

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placed in the pool. Moreover, the undisputed evidence shows that she worked for two-week

stints in the 2011–12 school year and worked each school day in the following years until the end

of the 2014–15 school year. See Resp. to JSUMF ¶¶ 69–70. The court dismisses Count XI.

That leaves Robertson’s mandamus claim in Count XII and her request for a declaratory

judgment in Count XIII. Robertson’s mandamus claim fails because she premises it on the

violations of law the court has dismissed. See TAC ¶ 207 (seeking mandamus for the reasons

“alleged above”); In re Ford Motor Co., Bridgestone/Firestone N. Am. Tire, LLC, 344 F.3d 648,

651 (7th Cir. 2003) (explaining that mandamus lies, inter alia, when the complained of action

“so far exceed[s] the proper bounds of . . . discretion as to be legitimately considered usurpative

in character, or in violation of a clear and indisputable legal right, or, at the very least, patently

erroneous” (first alteration in original)). The request for declaratory relief to the same effect in

Count XIII fails for the same reason: Robertson has failed to create a fact issue on any violation

of law.

V. CONCLUSION

For the reasons stated, defendants’ motions for summary judgment, ECF Nos. 220, 222,

are granted.

ENTER ORDER:

Dated: March 30, 2018 /s/

Joan B. Gottschall

United States District Judge

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