Toth v. Rich Township High School District 227

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

TRACI TOTH, )

)

Plaintiff, ) Case No. 17 C 6186

)

v. )

) Judge Robert W. Gettleman

RICH TOWNSHIP HIGH SCHOOL DISTRICT )

227, ANTOINE BASS, in his individual capacity, )

RANDY ALEXANDER, in his individual capacity, )

SHANNON ROSS-SMITH, in his individual )

capacity, and DR. DELORES WOODS, in her )

individual capacity, )

)

Defendants. )

MEMORANDUM OPINION & ORDER

Plaintiff Traci Toth brought a three count complaint against defendants Rich Township

High School District 227 (“District”) and Board of Education (“Board”) members Antoine Bass,

Randy Alexander, Shannon Ross-Smith, and Dr. Delores Woods, all in their individual capacities

(collectively “defendants”), alleging violations of 42 U.S.C. § 1981 (Count I), 42 U.S.C. § 1983

(Counts II and III), and the Fourteenth Amendment (Count III). Defendants moved for summary

judgment on all counts. Plaintiff cross-moved for summary judgment on her Fourteenth

Amendment claim in Count III. For the reasons discussed below, both motions are denied.

BACKGROUND

The following facts are stated as favorably to plaintiff as permitted by the record and

Local Rule 56.1.1 See Woods v. City of Berwyn, 803 F.3d at 867 (7th Cir. 2015). Plaintiff, a

1 Defendant requests that the court strike several paragraphs from plaintiff’s response to defendants’ Local Rule 56.1

statement of facts for failure to comply with the local rule. Several of plaintiff’s responses are impermissibly

argumentative and verbose, spanning several paragraphs and several pages. Local Rule 56.1 requires short and

concise responses. The use of headings and multiple paragraphs is inappropriate. However, in the interest of

Caucasian educator, has worked for the District at its Rich East campus since 1994. Plaintiff was

promoted to an Associate Principal of Teaching and Learning position in 2002. In February

2016, plaintiff was informed that her employment contract for that position would not be

renewed when it expired on June 30, 2016, but that she could interview for a teaching position.

Later in February 2016, the Board voted not to renew the contracts of eleven administrators,

including plaintiff. Plaintiff claims that eight of those affected were African American and three,

including plaintiff, were Caucasian. Plaintiff claims that all of the African American

administrators—except for two who opted to resign—were reassigned to similar administrative

positions at other campuses. Plaintiff did not receive an administrative reassignment and was

instead demoted to a teaching position.

Plaintiff claims that Bass, Alexander, Smith-Ross, and Dr. Woods, all of whom are Black,

voted to demote plaintiff to a teaching position on account of her race. Affidavit testimony by

co-superintendent Patricia Welch states that defendant Antoine Bass, the then-president of the

Board, met with her and the other co-superintendent, Ron Patton, in the fall of 2015 to discuss

his plan to “dismiss” all the administrators and force them to reapply for their jobs. The student

body of the District is majority African American, and the community had demanded more

African American teachers and administrators, believing that they would better serve the

students. Defendants claim that they pursued this plan because they were in the process of hiring

a new superintendent and they wanted to give the new superintendent the opportunity to hire

administrators of his/her choosing. Plaintiff asserts that this argument is pretext as the District

had not yet hired a new superintendent. Indeed, the District did not hire a new superintendent

until August of 2017, almost eighteen months after plaintiff’s demotion.

expediency, the court declines to strike the requested paragraphs, but will consider factual material only to the extent

it is supported by the record.

The exception to Bass’s plan to remove administrators were the administrators at Rich

South—all of whom were Black. Welch’s testimony states that Bass specifically mentioned

removing plaintiff and Bob Abrams “due to their ‘arrogance towards Black students.’” (Doc. 90,

Ex. H, ¶¶ 6-7). According to Welch’s affidavit, Bass “seemed fixated on the notion that white

administrators were ‘arrogant’ in their dealings with Black students.” (Id.).

The eleven non-renewed administrators were told that they would be able to interview for

their former positions. To facilitate this process, the Board created a committee to interview the

administrators and determine whether they should be rehired. Mark Kramer, principal of Rich

East and a white man, was not permitted to make a recommendation on rehiring administrators

for his school.2 However, the principals at Rich South and Rich Central, both of whom were

Black, were permitted to make such a recommendation. Kramer’s affidavit testimony states that

he would have rehired plaintiff and that most of the committee ranked plaintiff as the best

candidate to fill her former position.

Ultimately, plaintiff was not offered her former position. Instead, she was offered a

teaching position at a much reduced salary. Plaintiff claims that all of the African American

administrators, except for the two who resigned, were reassigned to administrative positions at

other campuses. Of the two remaining white administrators, one resigned and the other, an

athletic director, retained his job. Only plaintiff was demoted to a teaching position. By the end

of the process, none of the assistant principals were white.

Prior to the demotion, plaintiff had entered into the District’s retirement incentive

program. Under the program, eligible employees were required to notify the Board in writing if

they intended to retire within the next four years. The Board would then vote to approve the

2 Defendants claim that Kramer was leaving his position as principal of Rich East and therefore had no interest in

making a decision.

projected retirement date. Once approved, the employee would receive a 6% salary increase

each year until retirement. In addition to the increased salary, the Board would increase its

contributions to the employee’s individual retirement account with the Illinois Teacher’s

Retirement System for each year until retirement. The program also included a lump-sum

reimbursement for the employee’s post-retirement health insurance.

In 2015, plaintiff issued a notice of intent to retire in 2019, which was formally accepted

by the Board at its June 16, 2015, meeting. Plaintiff was subsequently notified by the Board that

her early retirement was accepted, and the Board provided a “Projected Retirement Salary

Summary” showing her base salary and corresponding 6% increases for each year until 2019.

The District paid the 6% increase for the 2015-16 school year, the last year plaintiff held an

administrative role. When reassigned to a teaching position, the District decreased plaintiff’s

salary from approximately $131,000 to $94,000. In addition to the decrease in salary, plaintiff

lost the medical insurance reimbursement, the promised 6% increase in salary each year, and the

increased contributions to her individual retirement account. However, officials in the District,

including co-superintendent Patricia Welch and Head of Human Resources Julie Grohn,

repeatedly promised plaintiff that she would continue to receive her early retirement benefits if

she were demoted to a teaching position.3

Plaintiff did not receive any notice that her 6% salary stipend and other retirement

benefits would be terminated. She was not given a hearing to address the termination of her

benefits. There is no evidence in the record that the Board informed plaintiff that she could

3 The parties dispute whether the District had a policy of paying retirement track salary and benefits if an administrator

was demoted to the classroom. Plaintiff asserts that such a policy exists and cites to defendants’ interrogatories that

identified another administrator who was demoted to a teaching position and continued to receive her administrator

salary and early retirement benefits. However, the District’s 30(b)(6) deposition states that the District had no such

policy.

pursue any grievance procedures or hearings. However, the parties agree that plaintiff’s counsel

repeatedly requested an explanation regarding the termination of plaintiff’s early retirement

benefits, and that these requests were ignored.

On March 12, 2018, the court denied defendants’ motion to dismiss, holding that plaintiff

sufficiently alleged a property interest in her retirement benefits. Toth v. Rich Township Sch.

Dist. et al., 2020 WL 1255018, at *2 (N.D. Ill. Mar. 12, 2018). After taking discovery, the parties

filed the instant motions for summary judgment.

LEGAL STANDARD

Summary judgment is proper where there is “no 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). 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). In determining

whether a genuine issue of material fact exists, the court must construe all facts and reasonable

inferences in the light most favorable to the nonmoving party. See CTL ex rel. Trebatosky v.

Ashland Sch. Dist., 743 F.3d 524, 528 (7th Cir. 2014). But the nonmovant “is only entitled to the

benefit of inferences supported by admissible evidence, not those ‘supported only by speculation

or conjecture.’” Grant v. Trus. of Ind. Univ., 870 F.3d 562, 568 (7th Cir. 2017).

DISCUSSION

1) Discrimination

The court analyzes reverse discrimination claims brought under § 1981 pursuant to the

same framework as Title VII claims. Bagwe v. Sedgwick Claims Mgmt. Servs., Inc., 811 F.3d

866, 879 n. 39 (7th Cir. 2016). To avoid summary judgment, a plaintiff must present evidence

sufficient to permit a reasonable jury to conclude that defendant demoted her because of her race.

See Ortiz v, Werner Enter., Inc., 834 F.3d 760, 765 (7th Cir. 2016). The standard “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 [ ]

action.” Id. To meet this standard a plaintiff may, but is not required, to rely on the burden

shifting framework from McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). This

framework is just a means of organizing and assessing circumstantial evidence in frequently

recurring factual patterns found in discrimination cases. Volling v. Kurtz Paramedic Servs., Inc.,

840 F.3d 378, 383 (7th Cir. 2016). Whatever method is used, the question for the court remains

the same: Has the non-moving party provided sufficient evidence to support a jury verdict of

intentional discrimination? Morgan v. SVT, LLC, 724 F.3d 990, 997 (7th Cir. 2013).4

Here, plaintiff asserts that defendants discriminated against her because she is a member

of a majority group, namely, Caucasian. The record indicates “fishy” background facts, and facts

from which the trier of fact could conclude that the final decision makers were inclined to

discriminate against Caucasian administrators. See Formella v. Brennan, 817 F.3d 503, 511 (7th

Cir. 2016). Although no one made racially discriminatory comments directly to plaintiff, the

record indicates that Bass stated on several occasions that white administrators were arrogant

towards Black students. Bass specifically identified plaintiff when discussing the arrogance of

white administrators and his desire to remove certain administrators. Further, the background

circumstances regarding the interview committee, such as allowing the Black principals to rehire

4 The parties’ briefing relies exclusively on direct and indirect methods of proof. The court cautions counsel that the

Seventh Circuit recently refined the standard for Title VII claims, eschewing the “rat’s nest of surplus tests,” including

direct and indirect methods of proof. Ortiz v. Werner Enterprises, Inc., 834 F.3d 760, 765 (7th Cir. 2016).

their Black administrators but not allowing the white principal to rehire plaintiff, are sufficiently

“fishy” to suggest that the District “is one of those unusual employers who discriminate[s]

against the majority.” Mills v. Health Care Service Corp., 171 F.3d 450, 455 (7th Cir. 1999). The

record additionally indicates that plaintiff suffered an adverse employment action in the form of a

demotion and corresponding salary cut, and that she was the only employee demoted despite

receiving high rankings from the interview committee. Finally, plaintiff has presented evidence

that her replacement candidate, a Filipino man, had much less experience than plaintiff.

Defendants’ main argument in response is twofold: 1) plaintiff’s theory is that she was

discriminated against in favor of African Americans, yet the District replaced her with someone

of Filipino descent; and 2) they had a legitimate reason for demoting plaintiff. The first argument

is a non-starter, given the statements and clear animus in the record towards white administrators

specifically. The record includes facts supporting the claim that plaintiff’s Caucasian race was a

factor in her demotion, regardless of the minority who replaced her.

Plaintiff counters the second argument by claiming the District’s proffered reason is

pretext for reverse discrimination. Pretext is more than faulty reasoning or bad judgment; pretext

is a lie or phony reason. Barnes v. Board of Trs. of Univ. of Ill., 946 F.3d 384, 389 (7th Cir.

2020). To establish pretext, plaintiffs must identify “weaknesses, implausibilities,

inconsistencies, or contradictions” in the defendants’ proffered reasons for the demotion that a

reasonable person would find worthy of credence. de Lima Silva v. Dep’t of Corr., 917 F.3d 546,

561 (7th Cir. 2019) (citations omitted). In this context, “the question is not whether the

employer’s stated reason was inaccurate or unfair, but whether the employer honestly believed

the reason it has offered to explain the discharge.” Robertson v. Dep’t of Health Servs., 949 F.3d

371, 380 (7th Cir. 2020) (citations omitted).

Defendants claim that their plan to remove and re-interview administrators was intended

to allow the new superintendent to hire administrators of his or her choosing. Plaintiff has

identified several inconsistencies in this position. First, a new superintendent had not been

chosen and did not arrive until eighteen months later in August of 2017. Second, the new

superintendent did not choose which administrators to re-hire; the Board did. And the Board did

so many months before the new superintendent arrived. Finally, the affidavit testimony suggests

this plan was of Bass’s own making, and it was his desire to remove the white administrators in

favor of minority candidates. Plaintiff has presented evidence creating a genuine dispute of

material fact regarding the Board’s reasoning.

For the reasons stated above, and viewing the record as a whole, a reasonable jury could

conclude that plaintiff’s race caused her demotion. Defendants’ motion for summary judgment is

denied.

2) Due Process

Plaintiff and defendants have filed cross-motions for summary judgement on plaintiff’s

due process claim. The elements of a procedural due process claim are, “(1) deprivation of a

protected interest and (2) insufficient procedural protections surrounding that deprivation.”

Michalowicz v. Vill. of Bedford Park, 528 F.3d 530, 534 (7th Cir. 2008) (citations omitted).

Property rights “are created and their dimensions are defined by existing rules or understandings

that stem from an independent source such as state law—rules or understandings that secure

certain benefits and that support claims of entitlement to those benefits.” Ulichny v. Merton

Cmty. Sch. Dist., 249 F.3d 686, 699 (7th Cir. 2001). “[P]roperty interests subject to procedural

due process protection are not limited by a few rigid, technical forms.” Id. Rather, “property

denotes a broad range of interests that are secured by existing rules or understandings.” Id.

Further, “a property right may be supplemented by other agreements implied from the promisor’s

words and conduct in light of the surrounding circumstances.” Id.

Plaintiff has presented enough evidence for a reasonable jury to conclude that she had a

protected interest in her early retirement program benefits. The early retirement incentive

program can be found in the collective bargaining agreement (“CBA”) as well as state statute.

40 ILCS 5/16-133(b). The Board voted to approve plaintiff’s application to participate in the

program in 2015, plaintiff received the additional salary benefits for one year, and after her

demotion several officials repeatedly promised plaintiff that her salary and benefits would

continue despite her demotion to a teaching position. The District did not follow through on its

promise. Not only was plaintiff demoted to a position with a lower salary, but her retirement

benefits ceased. Based on this record, a jury could find a legitimate entitlement and a deprivation

of that entitlement.

Defendants once again argue that plaintiff cannot be entitled to these retirement benefits

because a multi-year employment contract was invalid as a matter of law. The court previously

disposed of this argument in ruling on defendants’ motion to dismiss. Toth v. Rich Township

Sch. Dist. et al., 2020 WL 1255018, at *2 (N.D. Ill. Mar. 12, 2018). Plaintiff’s claim does not

hinge on her employment contract, but rather on her early retirement agreement with the District

and the benefits promised to her under that agreement. Plaintiff has presented enough evidence

for a jury to conclude that she was entitled to the payments and benefits under the early

retirement program.

Regarding the second element, plaintiff has similarly demonstrated a question of fact

regarding the District’s procedural protections. Once a plaintiff has demonstrated a protected

property interest, a defendant cannot deprive her of that interest without due process. “To

determine what process is due when a State deprives an individual of property, courts look at

three factors: (1) the private interest affected by the official action; (2) the risk of erroneous

deprivation of such interest through the procedures used and the probable value, if any, of

additional procedural protections; and (3) the government’s interest in maintaining the current

procedures.” Halfhill v. Ne. Sch. Corp., 472 F.3d 496, 502 (7th Cir. 2006).

Plaintiff argues that she received no notification that her benefits or salary would be

reduced. The March 22, 2016, letter informing her of her demotion says nothing about salary or

benefits. In fact, the record indicates that officials repeatedly promised her that her benefits and

salary would not change. The parties agree that plaintiff did not receive any sort of hearing prior

to, or after, her demotion. Defendants counter that a reclassification hearing was available after

plaintiff’s demotion under either the collective bargaining agreement or the school code, and that

plaintiff failed to utilize the procedures available to her. Additionally, in response to plaintiff’s

Local Rule 56.1 statement of facts, defendants attach a Board resolution authorizing

reclassification of several administrators, including plaintiff. That resolution states that

reclassified employees may seek a private or public hearing regarding their reclassification.

Defendants further argue that it was “not incumbent on the District to request that Plaintiff file a

grievance. It is her obligation to assert her own rights.” (Doc. 93, 10).

Defendants’ arguments are unpersuasive and do little more than demonstrate questions of

material fact. First, a hearing after termination or demotion is insufficient process; a plaintiff is

entitled to a pre-termination hearing. Simmons v. Gillespie, 712 F.3d 1041, 1044 (7th Cir. 2013)

(“The due process clause of the fourteenth amendment does require a state to afford an

opportunity for a hearing before depriving someone of a property right created by state law.”)

(Emphasis added.)° Second, it is unreasonable for defendants to fault plaintiff for failing to

request a reclassification hearing when defendants provided repeated assurances that her salary

and benefits would remain unchanged in her teaching role (and ignoring her counsel’s requests

for an explanation once it was clear the District reneged on its promise). Third, it is unclear from

the record whether plaintiff had any notice of the available reclassification hearing. A question of

fact remains regarding whether the resolution itself is sufficient notice of plaintiff’s procedural

rights, and whether the Board provided the resolution to plaintiff. See Dunesbery v. U.S., 534

U.S. 161, 168 (2002) (governmental entity bears the burden of showing that the procedures used

were “reasonably calculated under all the circumstances” to apprise the party of the pendency of

the action). Finally, it is incumbent on the Board to provide plaintiff with sufficient process, and

that includes reasonable notice regarding the available grievance procedures. A reasonable jury

could find the Board’s process inadequate.

Given the material questions of fact, summary judgment is inappropriate. The court

denies both plaintiffs and defendants’ motions.

CONCLUSION

For the reasons stated above, defendants’ motion for summary judgment (Doc. 80) is

denied, and plaintiff's motion for summary judgment (Doc. 89) is denied.

ENTER: September 25, 2020

“(Gluctw). Gate.

obert W. Gettleman

United States District Judge

> Prior to being demoted to a teaching position, plaintiff was an administrator and thus not in the collective bargaining

unit. Consequently, she could not have invoked the grievance procedure under the CBA.

11