Alvares v. Board of Education of the City of Chicago

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

EUGENIE ALVARES,

Plaintiff,

No. 18 CV 5201

v.

Judge Manish S. Shah

BOARD OF EDUCATION OF THE CITY OF

CHICAGO,

Defendant.

MEMORANDUM OPINION AND ORDER

Eugenie Alvares taught the business program at George Westinghouse College

Prep, a Chicago public high school, for five years. When the Board of Education

decided to eliminate the program, it also terminated Alvares’s employment. Alvares,

who is Asian American and was 58 years old when laid off, accuses the Board of race

and age discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C.

§§ 2000e et seq., and the Age Discrimination in Employment Act, 29 U.S.C. §§ 621 et

seq. The Board moves for summary judgment under Federal Rule of Civil

Procedure 56. The motion is granted.

I. Legal Standards

Summary judgment is proper when there is no genuine dispute of any material

fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a).

I construe all facts and reasonable inferences in favor of Alvares, the nonmoving

party. Robertson v. Department of Health Services, 949 F.3d 371, 377–78 (7th Cir.

2020). But the moving party is entitled to summary judgment when the nonmoving

party fails to make “a sufficient showing on an essential element” of her case for which

she has the burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

II. Local Rule 56.1 and Evidentiary Issues

Local Rule 56.1 “aims to make summary-judgment decisionmaking

manageable for courts.” Kreg Therapeutics, Inc. v. VitalGlo, Inc., 919 F.3d 405, 415

(7th Cir. 2019). The rule requires the moving party to file a statement of facts that

demonstrate its entitlement to judgment as a matter of law. Petty v. City of Chicago,

754 F.3d 416, 420 (7th Cir. 2014); N.D. Ill. Local R. 56.1(a)(3). The nonmoving party

must file a response to that statement and may provide a separate statement of

additional facts. Petty, 754 F.3d at 420; N.D. Ill. Local R. 56.1(b)(3). Both statements

of facts and statements of additional facts must consist of concise numbered

paragraphs, supported by citations to specific pages in the evidentiary record. See

N.D. Ill. Local R. 56.1(d)(1)–(2).

Any fact not properly controverted is admitted. N.D. Ill. Local R. 56.1(e)(3). If

the responding party disagrees with the other party’s fact, it must cite specific parts

of the record disputing the fact and “concisely explain how the cited material

controverts the asserted fact.” Id. Failure to properly controvert a fact results in its

admission. Cracco v. Vitran Express, Inc., 559 F.3d 625, 632 (7th Cir. 2009). Facts

that a party raises in a Local Rule 56.1 response that do not controvert the asserted

fact, and that are not included in the party’s statement of additional facts, are

stricken. I also disregard legal arguments in the statement of facts. See Cady v.

Sheahan, 467 F.3d 1057, 1060–61 (7th Cir. 2006).

The parties did not abide by Local Rule 56 in their filings. In response to some

of the Board’s facts, Alvares cites several entire exhibits without explaining how

specific parts of those exhibits controvert the Board’s asserted facts. See [86] ¶¶ 52–

53.1 The Board, for its part, repeatedly states that Alvares’s facts are disputed

without providing any citation to the record. See [91] ¶¶ 9–11, 13, 15–17, 19–20.

Under Local Rule 56.1(e)(3), those facts are not properly controverted and are

therefore admitted (unless, as discussed below, they are excluded on other grounds).

In Alvares’s additional statement of facts, moreover, she cites an entire 19-

page exhibit to support “arguments for why she should have been rated higher” in

her teacher evaluations. [91] ¶ 9; see also id. ¶ 18 (citing an entire 55-page exhibit).

And some of Alvares’s facts simply reference arguments, responses, and screenshots

within exhibits, without detailing any facts supported by specific parts of those

exhibits. See id. ¶¶ 9, 15, 17. These facts do not comply with the local or federal rules.

See Fed. R. Civ. P. 56(c)(1)(A) (asserted facts must be supported by “particular parts

of materials in the record”); see also Compania Administradora de Recuperacion v.

Titan Int’l, Inc., 533 F.3d 555, 562 (7th Cir. 2008) (“The district court cannot be

expected to search through the entire record for evidence that may support a party’s

contentions; a party must point to specific evidence that creates a genuine issue of

material fact for trial.”). Accordingly, I disregard Alvares’s additional facts that do

1 Bracketed numbers refer to entries on the district court docket. Referenced page numbers

are taken from the CM/ECF header placed at the top of filings, except in the case of citations

to depositions, which use the deposition transcript’s original page number. The facts are

largely taken from Alvares’s response to the Board’s Local Rule 56.1 statement, [86], and the

Board’s response to Alvares’s statement of additional material facts, [91], where both the

asserted fact and the opposing party’s response are set forth in one document.

not identify specific evidence in the record or are based only on general references to

entire exhibits. [91] ¶¶ 9, 15, 17, 18.

Alvares also flouts the local rule by relying on facts throughout her response

brief that are not in her Rule 56.1 statement. See [85] at 2–5, 10–12, 14. “[P]roviding

additional facts in one’s responsive memorandum is insufficient to put those facts

before the Court.” Malec v. Sanford, 191 F.R.D. 581, 584 (N.D. Ill. 2000); see also

Igasaki v. Ill. Dep’t of Fin. & Prof’l Regs., No. 15-CV-03693, 2018 WL 4699791, at *2

(N.D. Ill. Sept. 30, 2018) (“Citing directly to new facts in the opposition brief is a clear

violation of Local Rule 56.1.”). Alvares also cites directly to the record throughout her

brief, rather than to the 56.1 statements—another rule violation. See Mervyn v.

Nelson Westerberg, Inc., 142 F.Supp.3d 663, 664–65 (N.D. Ill. 2015) (collecting cases).

It is “essential to the court’s proper consideration” of a party’s arguments for the party

to reference “the Local Rule 56.1 statements and responses and not the record

materials themselves.” Id. at 666. I disregard the facts that Alvares asserts for the

first time in her brief.

On top of these Local Rule 56.1 issues, Alvares’s statement of facts also suffers

from several evidentiary defects. Evidence supporting or opposing summary

judgment must be admissible if offered at trial, except that depositions and other

written testimony can substitute for live testimony. Widmar v. Sun Chemical Corp.,

772 F.3d 457, 460 (7th Cir. 2014). I may consider “properly authenticated and

admissible documents or exhibits” in a summary-judgment proceeding. Woods v. City

of Chicago, 234 F.3d 979, 988 (7th Cir. 2000). Under Federal Rule of Evidence 901(a),

to authenticate an item of evidence, the proponent “must produce evidence sufficient

to support a finding that the item is what the proponent claims it is.” United States

v. Jackson, 940 F.3d 347, 351 (7th Cir. 2019) (quoting Fed. R. Evid. 901(a)).

Some of Alvares’s additional facts come from exhibits that are inadmissible

because they are unauthenticated, hearsay, or both. Alvares asserts that she sent a

timeline to Tyler Ticknell (another teacher at Westinghouse) showing that she did

not receive certain access codes needed to do her job. [91] ¶ 7. To support this fact,

Alvares cites a document without a date, signature, or any indication that she sent

the document to Ticknell. [85-8]. Alvares cites to no supporting affidavit or evidence

in the record that could serve as authentication for this document. Even if Alvares

could authenticate the timeline, moreover, it would still be inadmissible hearsay—

she is introducing the timeline (an out-of-court statement) to prove that she did not

receive certain codes. See Fed. R. Evid. 801. The same goes for the June 2017 letter

that Alvares allegedly wrote to Carol Milazzo identifying “specific instances of

discriminatory conduct on the part of [Alvares’s supervisor, Westinghouse Principal

Patrick] McGill.” [91] ¶ 11. The letter is inadmissible hearsay; it is an out-of-court

statement regarding McGill’s discriminatory conduct, introduced to prove such

conduct.

Next, Alvares cites a document purportedly containing her “responses to

various concerns” regarding her job performance. [91] ¶ 15; [85-17] at 1–2. This

nonspecific statement fails to assert a fact and, to the extent it is meant to dispute

the truthfulness of the Board’s claims about her work, the assertion is inadmissible

hearsay (out-of-court statements by Alvares, offered by Alvares, for the truth of

Alvares’s version of events). The email from Alvares’s union representative accusing

McGill of having personal animus and taking punitive action toward Alvares is also

hearsay. [91] ¶ 16. And Alvares’s statement that she could have been placed in a

math-teacher role is unsupported by the document she cites—a collective bargaining

agreement that took effect after Alvares was laid off. [91] ¶ 21.

I also disregard the screenshots of the teacher roster and uploaded courses.

[91] ¶¶ 6, 8, 17. Alvares cites to no supporting affidavit or evidence in her deposition

or elsewhere in the record that could serve as authentication for these screenshots.

And, even setting these evidentiary flaws aside, the screenshots do not support the

facts she asserts. Although Alvares does not appear on the roster she provides, there’s

no support for her assertion that the school deliberately left her off. The Google Drive

screenshots of Mr. Johnson’s course maps do not show that he uploaded them into

the system late; the screenshot shows only when those documents were “last

modified.” [85-9] at 1.

That leaves the affidavits of teacher Sharron Anderson and business manager

Conneka Travis. An affidavit can be used as evidence to oppose summary judgment,

but it “must be made on personal knowledge, set out facts that would be admissible

in evidence, and show that the affiant or declarant is competent to testify on the

matters stated.” Fed. R. Civ. P. 56(c)(4). I may deem an affidavit inadmissible if it is

“replete with generalized assertions” for which the affiant lacks personal knowledge.

See Smith v. Ill. Dep’t of Transportation, 936 F.3d 554, 559 (7th Cir. 2019).

Anderson’s affidavit asserts, in relevant part, that she taught in the classroom

next to Alvares’s and they worked together under the same department chair; Alvares

was a knowledgeable and resourceful teacher; and Anderson “felt that McGill treated

[Alvares], myself, and other persons of color differently … [and] I was a victim of race

discrimination, just as [Alvares] was.” [91] ¶ 20; [85-22] ¶¶ 4, 6, 13. Travis’s affidavit

says that: (1) Alvares was a “caring … smart, enthusiastic, and dedicated” teacher

who measured up to other Westinghouse teachers; (2) McGill heavily scrutinized

Alvares’s classroom-supply orders and treated her “different from white or Caucasian

students and often referred to [Alvares] as stupid or dumb;” (3) McGill was caught

whistling “Dixie”—a racially offensive song; (4) Travis believed that McGill had

animus or bias against people of color because he terminated several African

American custodians, and he did not approve an African American counselor’s plans

for college-bound students, but accepted a white counselor’s plan for students;

(5) other teachers and staff were also late on heavy snow days but not disciplined;

and (6) McGill said he was “going to get [Alvares] up out of here.” [91] ¶ 19; [85-21]

¶¶ 6–8, 13, 17–19.

The Board asks me to strike both affidavits in their entirety because “they

contain only conclusory allegations, and subjective beliefs, and are unsupported by

the record.” [90] at 4. Alternatively, the Board requests that I strike statements that

are “irrelevant, not based on personal knowledge, generalized, and unsupported by

the record.” Id.2

2 The Board also says that Travis’s affidavit cannot be authenticated because the certification

page states “I, Sharron Anderson” instead of “I, Conneka Travis.” [91] ¶ 19; [85-21] at 5.

Although both affidavits include some inadmissible material, I decline to strike

them in their entirety. It is reasonable to infer that some of the information is

relevant, based on personal knowledge, and admissible. For example, as Alvares’s

colleagues, it is reasonable to infer that Travis and Anderson had personal knowledge

of Alvares’s teaching performance. That is relevant to whether Alvares was meeting

employer expectations and therefore admissible, even if this evidence is ultimately

insufficient to create a factual dispute over whether Alvares met her employer’s

expectations. See Peele v. Country Mut. Ins. Co., 288 F.3d 319, 329 (7th Cir. 2002).

Moreover, as the business manager at Westinghouse, Travis worked with both

McGill and Alvares for years. It is reasonable to infer that she has personal

knowledge of McGill and Alvares’s relationship and interactions. Travis explains that

she knew that Alvares’s classroom-supply orders came under extreme scrutiny from

McGill, because Travis would ultimately place those orders for the school. [85-21] ¶ 7.

She also had knowledge that, during a three-year span working with McGill, he

terminated two African American custodians, one African American business

manager, referred to another African American employee as ignorant, and was

caught whistling the Confederate song “Dixie” in front of African American

employees. Id. ¶¶ 10, 13. Travis also claimed that, during her tenure, McGill never

launched an investigation against a white teacher, but he did so against Alvares and

an African American payroll clerk. Id. ¶ 20. All of this is based on Travis’s personal

Despite this apparent drafting error, the rest of the document refers to only Travis, the

signature line bears Travis’s name, and the affidavit is signed by Travis. [85-21] at 5. There

are enough indicia for me to conclude that the affidavit is a sworn statement by Travis.

knowledge and relevant; it is probative of whether McGill held bias against people of

color in general.

Further, Travis’s claim that McGill intended to “get [Alvares] up out of here,”

is not based on inadmissible hearsay. [85-21] ¶ 19. McGill’s statements would be

admissible at trial as the non-hearsay admission of a party opponent. See Fed. R.

Evid. 801(d)(2)(D) (a statement is not hearsay if it is “offered against an opposing

party and ... was made by the party’s agent or employee on a matter within the scope

of that relationship and while it existed”). McGill’s statements about Alvares—one of

the teachers he supervised—were within the scope of his employment relationship

with the Board, and he “was involved in the decisionmaking process affecting

[Alvares’s] employment action, which was enough to make [his] statement an

admission under Rule 801(d)(2)(D).” Makowski v. SmithAmundsen LLC, 662 F.3d

818, 823 (7th Cir. 2011). And statements of then-existing intent or motive are not

excluded by the hearsay rule. Fed. R. Evid. 803(3).3

On the other hand, some of the statements in the affidavits are inadmissible.

Anderson’s statement that Alvares was a victim of race discrimination is inadmissible

because it is too generalized to show that Anderson had personal knowledge of any

discrimination against Alvares. Anderson does not specify whether she witnessed

McGill commit any acts of discrimination against Alvares, and without knowing

3 Travis’s claim that McGill was “conspiring” to “build a case” against Alvares is not

admissible. See [85-21] ¶ 19. It is a lay opinion or conclusion that is not helpful to understand

Travis’s testimony (as a mere reporter of McGill’s statements) and not relevant to

determining a fact in issue. See Fed. R. Evid. 701. Whether Travis thinks a conspiracy was

afoot is not something that would help a fact finder decide whether race motivated the

decision to end Alvares’s employment.

“what [he] did, and when [he] did it,” there is “no way of knowing what to make of

this evidence.” Smith, 936 F.3d at 559. Travis’s detailed description of unrelated

incidents with McGill, her own firing, and the firing of other non-teacher employees,

are inadmissible under Federal Rule of Evidence 402 because they are irrelevant to

whether the Board’s termination of Alvares was discriminatory. [85-21] ¶¶ 11–12,

14–15. Both affidavits contain several other irrelevant or inadmissible statements,

but Alvares does not rely on them, so I need not address those issues further here.

III. Facts

Eugenie Alvares, an Asian American over the age of forty, taught the business

and accounting program at George Westinghouse College Prep (a Chicago Public

School) from August 2012 until she was laid off in August 2017. [86] ¶¶ 1–3.4 Alvares

was a member of the Chicago Teachers Union, and its collective bargaining

agreement with CPS governed the terms of her employment at Westinghouse. Id. ¶ 4.

Principal Patrick McGill was Alvares’s direct supervisor from Spring 2014 until her

layoff. Id. ¶ 7; [91] ¶ 1.

A. The Business Career and Technical Education Program

From 2008 until 2017, Westinghouse had four Career and Technical Education

programs, which aimed to help students develop career-specific knowledge and skills

in broadcast journalism, information technology, medicine, and business. [86] ¶ 5.

4 The Board rehired Alvares in 2018 and she currently teaches at another CPS school. [86]

¶ 3.

Financial literacy was among the skills that CPS hoped to instill in its students. [91]

¶ 12. Alvares was the only teacher in Westinghouse’s business program. [86] ¶ 6.

While the three other CTE programs excelled, the business program

“floundered,” and became less popular with students. Id. ¶¶ 11–12. Many students

requested to transfer from the business program to other CTE programs, to the point

where the three other programs were full and had no openings left. Id. ¶ 12.

Enrollment in the business program declined, from roughly 90 students during the

2013–2014 school year, to 39 students in 2017. Id. At the same time, demand for

engineering courses at Westinghouse grew; student enrollment quadrupled from 30

students to 120 students, and the school built a successful corporate partnership to

support engineering courses, summer internships, and field experience. Id. ¶¶ 13–14.

Based on these trends and the totality of the circumstances, McGill concluded that

replacing the business program with a pre-engineering academy was in the best

interest of students. Id. ¶ 15.

To close the business program, McGill followed the method set forth in the

collective bargaining agreement: he received approval from the relevant CPS official

and consulted with the Local School Council. Id. ¶ 16–17. In June 2017, CPS notified

Alvares’s union of the recommendation to close the program, and although the union

had the opportunity to object, it did not do so. Id. ¶ 16. When the business program

closed in August 2017, Alvares’s position was eliminated and she was laid off. Id.

¶ 18. Alvares did not apply for another teaching position at Westinghouse. Id. ¶ 19.

Alvares was certified to teach math, but there was no math-teacher vacancy for her

to fill. Id. Alvares’s poor performance rating (discussed more below) also made her

ineligible to “bump” a math teacher from his or her post. Id.

Alvares does not dispute that the business program closed due to lack of

student interest and lack of success. Id. ¶ 18. Even so, Alvares testified that she

believed her medical leave was the only reason she was terminated. Id. ¶¶ 20–21;

[84-3] at 23:21–24:12. Alvares later testified that she believed that the business

program’s closure and her layoff were based on her race and age, but she could recall

no evidence to support those beliefs.5 [86] ¶ 21; [84-3] at 68:6–69:12.

B. Alvares’s Employment Record

1. Teaching Evaluations

To evaluate teacher performance, the Board and the union developed a process

that included two informal observations, two formal observations, and conferences

with the teacher. [86] ¶ 22. After calculating a total score from the classroom

observations, each teacher received a rating on a four-tier scale: (1) excellent,

(2) proficient, (3) developing, or (4) unsatisfactory. Id. ¶¶ 22–23.

Alvares’s ratings ranged from “developing” to “unsatisfactory.” During the

2013–2014 school year, McGill and two other administrators conducted Alvares’s

observations; she earned a “developing” rating—the second lowest tier. Id. ¶ 24. The

next school year, McGill conducted all four of Alvares’s observations; although her

total score improved, it still fell within the “developing” range. Id. ¶ 25. During the

5 Alvares says this fact is in dispute because she testified that she believed the school closed

the business program due to her age. See [86] ¶ 21. But that does not controvert the fact that,

when asked if she had any evidence to support that belief, she said “no.” [84-3] at 68:17–19.

2015–2016 school year, with McGill again conducting Alvares’s evaluations, her total

score decreased but still fell within the “developing” range. Id. ¶¶ 27, 29. Under the

collective bargaining agreement in effect at the time, however, a teacher who received

two consecutive “developing” ratings would be deemed “unsatisfactory” if, in the

second year, her overall score did not improve. Id. ¶ 27. Because Alvares’s total score

decreased from the previous year, her 2015–2016 rating defaulted to “unsatisfactory.”

Id. ¶¶ 26–27.6

During the 2015–2016 school year, Alvares’s final observation occurred later

than usual because she was on medical leave from late April until June 8. Id. ¶ 28.

Although the school normally did not conduct observations so close to the end of the

school year, one of the Board’s attorneys advised McGill to schedule the observation

at the earliest possible opportunity. Id. McGill followed the advice, conducting the

final observation on June 9, Alvares’s first day back from leave. Id.

As the instructional leader at Westinghouse, McGill evaluated teachers who,

like Alvares, were on professional development plans or performance improvement

plans. Id. ¶ 30. Based on his classroom observations of Alvares, McGill provided 105

pages of evidence to justify Alvares’s 2015–2016 rating. Id. ¶ 29. McGill testified that

he did not have bias or personal animus against Alvares. Id. ¶ 30; [84-21] at 74:24–

75:3, 75:22–76:8. That same school year, however, Alvares received a teacher

scholarship from Illinois Jump$tart Coalition—an entity independent from the

6 Alvares did not receive a rating for the 2016–2017 school year, because she was on leave

from November 2016 until she was laid off the following August. [86] ¶ 31.

Board—in recognition of her commitment to teaching finance and economics. [91] ¶ 1;

[85-10] at 1.

2. Disciplinary Measures

The school disciplined Alvares for poor performance and issued her three

disciplinary citations—called “performance improvement processes”—in December

2015. [86] ¶ 32; [84-24] at 9–11. PIPs came in three levels: Step 1 (least severe), Step

2, and final warning (most severe). [86] ¶ 32. McGill issued Alvares one of each. Id.

¶ 33. Before issuing the PIPs, McGill consulted with, and received approval from, a

CPS labor-relations official to ensure appropriate timing, content, and classification.

Id. Alvares received PIPs for tardiness and submitting untimely and outdated lesson

plans, failing to adhere to exam-administration policies, and committing the school

to unapproved expenses. Id. ¶¶ 34–57.

Alvares received a Step 1 PIP in December 2015 for submitting untimely and

outdated curriculum planning documents and for tardiness. Id. ¶¶ 39, 43; [84-24] at

9. Westinghouse required teachers to submit curriculum planning documents—

including syllabi, course maps, and assessments—to department heads by a certain

date before each school year. [86] ¶¶ 34–35. Alvares missed the submission date in

September 2015, and although she eventually submitted curriculum documents, they

were outdated and contained inaccurate dates. Id. ¶¶ 35–36. Alvares admitted that

she untimely submitted a previously created unit plan, but she blamed the inaccurate

dates on clerical and data-entry errors. Id. ¶ 37. The Step 1 PIP also encompassed

her record of tardiness. Id. ¶ 43. Alvares acknowledged that she was tardy on two

separate occasions, once in September 2015 and once in November 2015, but blamed

the November tardiness on a massive snowstorm that hit Chicago that day. Id. ¶¶ 40–

43; [91] ¶ 5.

McGill also issued Alvares a Step 2 PIP for failing to competently administer

a QuickBooks certification exam. [86] ¶ 44; [84-24] at 10. The CPS Law Department

independently investigated Alvares based on perceived irregularities in the exam

results. [86] ¶ 45. Before 2015, no one at Westinghouse had passed the exam; that

year, however, every student in Alvares’s class passed the exam with high scores. Id.

The investigator concluded that there was credible evidence that Alvares allowed her

students to take the exam multiple times (four times on average), which allowed them

to familiarize themselves with the questions and answers, defeating the purpose of

the test. Id. ¶¶ 46–47. Alvares admitted that most of her students took the exam

multiple times—some as many as six to eight times—and that she allowed students

who had not yet taken the exam to remain in the room as other students took the

exam. Id. ¶¶ 47–49. The Law Department investigation also found, on the other hand,

that there was no credible evidence to suggest that Alvares provided her students

with the exam’s questions or answers. [91] ¶ 2. McGill gave Alvares a Step 2 PIP for

failing to adhere to exam administration policies; based on his own findings, McGill

concluded that Alvares had failed to maintain a log showing when students signed in

and out, and she permitted electronic devices and students’ property to remain in the

exam room—serious violations of exam procedure that put the validity of student

scores in jeopardy. [86] ¶¶ 50–51.7

Lastly, Alvares received her third PIP (initially a final-warning PIP but later

reduced to Step 2 after arbitration) for violating Board policy by committing the

school to expenditures without authorization. Id. ¶ 57. Alvares took a group of

students to an out-of-town conference. Id. ¶ 52. Although Alvares was aware of the

need to submit school-expenditure requests in advance, she failed to seek advance

authorization to have Westinghouse pay for conference registration fees and student

hotel expenses. Id. ¶¶ 52–53, 56. Instead, Alvares’s application for student travel

represented that the business CTE program, and not Westinghouse’s school budget,

would cover the costs for students. Id. ¶ 54.8 When Alvares and the students arrived

at the hotel, however, she did not have funds for the registration fees or the hotel. Id.

¶ 55. With the students at risk of being ousted from the hotel and stranded without

transportation, Alvares called the school for help. Id. McGill and Conneka Travis, the

former business manager at Westinghouse, rushed to get checks to cover the costs,

7 These facts are undisputed, but Alvares maintains that she followed exam administration

procedures. See [91] ¶ 3. Specifically, Alvares states that “[t]here is no mention in these

procedures where test takers may stow their book bags and other personal belongings” or

“restricting how many times a student may take the test.” Id. The policy Alvares cites,

however, bans electronic devices from the testing area and states that student property “such

as books or bags, should be stored outside the testing environment.” [85-3] at 2. Alvares is

correct that the policy does not expressly limit the number of retakes, although it does warn

that “retakes may reveal patterns of cheating.” Id. at 1. In any event, the Step 2 PIP made

no mention of student retakes; rather, it focused on Alvares’s (1) failure to maintain a log and

(2) failure to exclude student electronic devices and personal property from the testing area.

See [86] ¶ 51; [84-24] at 10.

8 Alvares says that McGill “signed off” on “the” check request in October 2014. [91] ¶ 4. But

the 2014 request was for $360 to cover student-membership fees to a business organization,

not the November 2015 conference registration fees and overnight costs. [85-5] at 15.

which totaled over $2,000. Id. ¶¶ 53, 55. Travis heard McGill say that he intended to

get Alvares “out of here” as he marshaled the information about Alvares’s botched

field trip. [91] ¶ 19; [85-21] ¶ 19.

3. Delayed Payment for Sick Days

In late September 2016, Alvares allegedly fell and sustained injuries in her

classroom. [86] ¶ 58. Alvares took three days off (two sick days and one personal day)

in early October and, per Board policy, submitted an absence form to McGill for

approval. Id. ¶¶ 59–60. Under Board policy, if a supervisor had reasonable suspicion

that an employee was abusing sick days, he could demand that the employee provide

certification from a physician. Id. ¶ 61. McGill suspected that Alvares was abusing

her sick days, in part, because she had a history of suspiciously timed absences that

disrupted her teaching evaluations. Id. ¶ 62.9 McGill approved the absence for the

personal day but asked Alvares for a doctor’s note for the sick days. Id. ¶¶ 62–63.

Alvares explained that she was recovering from the fall in her classroom and had

since undergone treatment, but she did not have a doctor’s note for the two sick days.

Id. ¶ 64. Alvares filed a grievance in December 2016 to receive payment for the sick

days, and McGill ultimately approved payment for the sick days. [91] ¶ 14; [86] ¶ 65.

4. Grievances against McGill

From April 2016 to September 2017, Alvares’s union filed three grievances

against McGill on her behalf. In April 2016, after Alvares’s successful arbitration

9 I disregard the Board’s reliance on what teachers, staff, and students told McGill regarding

Alvares’s use of her sick days because such statements are inadmissible hearsay. [86] ¶ 62.

reducing her expense-related PIP from final warning to Step 2, the union filed a

grievance against McGill accusing him of personal animus and retaliation based on

Alvares’s engagement in protected union activity (the arbitration). [91] ¶ 10; [85-12]

at 1. The grievance asked McGill to “[c]ease and desist with your unfair and unequal

scrutiny” toward Alvares, to assign an outside administrator to perform Alvares’s

teacher evaluations, and to have the school perform additional observations during

the 2015-2016 school year “to void the tainted one driven by your personal animus.”

[91] ¶ 10; [85-12] at 1. In December 2016, the union filed another grievance, this time

seeking payment for Alvares’s two October sick days. [91] ¶ 14. The grievance claimed

that McGill was still retaliating against Alvares for her arbitration victory and for

her use of a contractually negotiated benefit. [85-16] at 1. Finally, the union filed a

third grievance against McGill in September 2017, roughly a month after Alvares was

laid off. [91] ¶ 13. The third grievance accused McGill of ignoring the union’s efforts

to obtain information regarding Westinghouse’s reasons for closing the business

program. [85-15] at 1–2.10

5. McGill’s Treatment of Alvares

Travis (the former business manager) stated in her affidavit that McGill

heavily scrutinized Alvares, treated her differently from white people—specifically,

by punishing her for tardiness on snow days and launching an investigation against

her—and often referred to her as “stupid or dumb.” [85-21] ¶¶ 7–8, 17–20. Alvares,

10 The grievance itself—the only document cited for this fact—does not support Alvares’s

assertion that “McGill did not respond to this Grievance no[r] supply any particulars to

Plaintiff.” [91] at ¶ 13.

however, acknowledged that McGill never called her any derogatory names, nor said

anything racist or ageist to her. [86] ¶ 69; [84-3] at 47:5–17, 76:10–13. While Alvares

testified that she believed she was rated “developing” due to her race, she could not

recall facts to support that belief; she also testified that she did not have any evidence

to support her belief that she was laid off due to race or age. [86] ¶¶ 71–73; [84-3] at

33:24–34:12, 68:17–19, 69:6–12, 76:14–17.

D. Administrative Proceedings

In November 2016, Alvares filed a discrimination charge with the Equal

Employment Opportunity Commission. [86] ¶ 66. Alvares claimed that she had been

discriminated against based on her age and race on October 14, 2016. [84-2] at 10.

“During my employment, I have been harassed and disciplined,” Alvares said, “I have

been subjected to different terms and conditions of employment, than younger and

white co-workers, including … docked wages and scrutiny.” Id. In November 2017,

Alvares amended the charge, adding allegations of retaliation and claiming that the

school engaged in unjustified observations of her teaching, assigned her courses

outside of her curriculum, denied her permission to attend a professional

development course, delayed provision of resources for her students, and placed her

on a 90-day remediation plan. Id. at 11; [86] ¶ 67. The amended charge claimed that

the discrimination last took place on August 24, 2017, and Alvares noted that “[s]ince

filing the instant charge, [Westinghouse] has discharged me.” [84-2] at 11. The EEOC

issued a right-to-sue letter, and Alvares filed this suit. See [84-2] at 13.11

11 Alvares opted not to pursue the retaliation claim.

IV. Analysis

A. Age Discrimination

Alvares has abandoned her age discrimination claim. The ADEA protects

workers aged 40 and older from age-based employment discrimination. 29 U.S.C.

§§ 621(b), 631(a). While Alvares falls within that protected class, she has produced

no evidence to support her age discrimination claim, testified that she has no evidence

to support age discrimination, and offers no argument about her ADEA claim in her

brief. Because Alvares has failed to demonstrate that her assertions of age

discrimination have any factual or legal support, the Board is entitled to summary

judgment on the ADEA claim. See Williams v. Bd. of Educ. of City of Chicago, 982

F.3d 495, 511 (7th Cir. 2020).

B. Race Discrimination

Title VII prohibits an employer from discriminating against an employee based

on her race. 42 U.S.C. § 2000e-2(a).12 The question here is whether a reasonable

factfinder could find that Alvares was subjected to an adverse employment action

based on her race. See Barnes v. Bd. of Trs. of Univ. of Ill., 946 F.3d 384, 389 (7th Cir.

2020); McCurry v. Kenco Logistics Servs., LLC, 942 F.3d 783, 788 (7th Cir. 2019). A

plaintiff may prove discrimination either directly or indirectly. McKinney v. Off. of

Sheriff of Whitley Cty., 866 F.3d 803, 807 (7th Cir. 2017). Alvares relies on the indirect

12 In her brief, Alvares avers that “we now know that McGill … has prejudice against people

of color, and particularly women.” [85] at 10. She cites no fact or evidence to support this

assertion, and this is not a sex discrimination case. Alvares did not claim—in her EEOC

charge or her complaint—that McGill discriminated against her on the basis of her sex.

burden-shifting method of proof set forth in McDonnell Douglas Corp. v. Green, 411

U.S. 792 (1973), and on the holistic approach supplied by Ortiz v. Werner Enterprises,

Inc., 834 F.3d 760, 765 (7th Cir. 2016).

Under the indirect burden-shifting method, Alvares must establish a prima

facie case of discrimination. Barnes, 946 F.3d at 389; Riley v. Elkhart Community

Schools, 829 F.3d 886, 891–92 (7th Cir. 2016). To establish a prima facie case of race

discrimination, Alvares must “present evidence that (1) she is a member of a

protected class, (2) she was meeting the Board’s legitimate expectations, (3) she

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

of her protected class were treated more favorably.” Fields v. Bd. of Educ. of City of

Chicago, 928 F.3d 622, 625 (7th Cir. 2019). If Alvares makes this showing, then the

burden shifts to the Board to produce a legitimate, nondiscriminatory reason for its

action. Barnes, 946 F.3d at 389. The burden then shifts back to Alvares to produce

evidence that the Board’s stated reason was pretextual. Barnes, 946 F.3d at 389;

Riley, 829 F.3d at 892.

An adverse employment action under Title VII is a “significant change in

employment status, such as hiring, firing, failing to promote, reassignment with

significantly different responsibilities, or a decision causing a significant change in

benefits.” Chaudhry v. Nucor Steel-Indiana, 546 F.3d 832, 838 (7th Cir. 2008)

(quoting Bell v. E.P.A., 232 F.3d 546, 555 (7th Cir.2000)). Here, there’s no dispute

that Alvares is a member of a protected class and that her termination constitutes a

materially adverse employment action. The parties quibble, however, over whether

Alvares may base her claim on certain other acts.

“[T]o bring a Title VII claim at all … a plaintiff must file a complaint with the

EEOC within 300 days of experiencing the complained-of discrimination.” Swanson

v. Vill. of Flossmoor, 794 F.3d 820, 825 (7th Cir. 2015). Because Alvares filed her

EEOC charge November 2, 2016, the Board argues that claims based on

discriminatory acts before January 7, 2016, are time-barred; therefore, it says, the

only acts Alvares identifies within the limitations period are her temporarily unpaid

sick days (which is not an adverse employment action) and her termination. Alvares

counters that because she has identified one materially adverse action within the

limitations period (her layoff), she should also be allowed to ground her

discrimination claims on acts outside the limitations period under the continuing

violation doctrine. Alvares further argues that other instances of discriminatory

conduct—the unpaid sick days, McGill’s solo evaluations of Alvares, the 2016

evaluation after the normal observation period, and not having her own office or her

name on the teacher roster—add up to a materially adverse employment action. See

[85] at 12.

Alvares’s arguments fall flat because the continuing violation doctrine applies

to hostile work environment claims, not to claims based on discrete discriminatory

acts. See Swanson, 794 F.3d at 826 (“A plaintiff who complains of discrete

discriminatory acts … must report each act to the EEOC in the required timeframe.

… By contrast, a plaintiff who makes a hostile work environment claim may invoke

the continuing violations doctrine and recover for related employer conduct outside

the limitations period.” (citing Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101,

114, 117 (2002))). Alvares does not make a hostile work environment claim here,13 so

her allegations of discrimination before January 7, 2016, are time-barred. And

because the two temporarily unpaid sick days do not amount to a materially adverse

employment action, the scope of Alvares’s Title VII claim is limited to whether her

layoff was racially discriminatory. See Swanson, 794 F.3d at 826.14

Alvares’s discrimination claim fails under McDonnell Douglas because she has

not marshaled evidence to demonstrate that she was meeting the Board’s legitimate

expectations, that she was treated less favorably than similarly situated employees

outside of her protected class, or that the Board’s proffered reasons for closing the

business program were pretextual.

First, Alvares lacks evidence showing that she met the Board’s legitimate

expectations. She argues that her performance would have been satisfactory if not for

13 “A hostile work environment claim is composed of a series of separate acts that collectively

constitute one ‘unlawful employment practice.’” Morgan, 536 U.S. at 117 (quoting 42 U.S.C.

§ 2000e–5(e)(1)). To survive summary judgment on a hostile work environment claim, a

plaintiff must provide sufficient evidence demonstrating “(1) the work environment was both

objectively and subjectively offensive; (2) the harassment was based on membership in a

protected class or in retaliation for protected behavior; (3) the conduct was severe or

pervasive; and (4) there is a basis for employer liability.” Boss v. Castro, 816 F.3d 910, 920

(7th Cir. 2016). Alvares has not produced sufficient evidence to permit a reasonable jury to

find in her favor on a hostile work environment claim. See Abrego v. Wilkie, 907 F.3d 1004,

1015–16 (7th Cir. 2018) (short-tempered, hostile, unfairly critical, and disrespectful

supervisors who excessively monitored plaintiff did not create objectively offensive, severe,

or pervasive conditions or a hostile workplace “permeated with discriminatory intimidation,

ridicule, and insult”).

14 Alvares also cannot base her claim on her final teaching evaluation from June 2016,

because even if timely, negative performance reviews and performance improvement plans

do not constitute adverse employment actions. Fields, 928 F.3d at 626.

McGill’s biased evaluations. [85] at 10–11. Alvares posits that McGill had animus

against her, so she did not “get a fair shake.” Id. at 11. And, she says, Travis’s and

Anderson’s affidavits show that McGill had bias against Alvares because she is Asian.

Id. at 13. Alvares also claims that she received teaching awards from outside

organizations, and that her ratings fell only after McGill became the principal at

Westinghouse. Id. at 10–11.

Beyond conjecture and generalizations regarding McGill’s bias, however,

Alvares does not point to any evidence in the record that undermines the accuracy of

her negative teacher ratings or her PIP citations. Indeed, Alvares admits that she

earned below average and unsatisfactory teacher ratings and received three

disciplinary write-ups for tardiness, missed deadlines, and failing to follow exam-

administration procedures. See [86] ¶¶ 24–30, 32–57; [85] at 11 (noting that Alvares

“was cleared of serious cheating charges” but “did violate some procedural aspects” of

the exam procedures). Alvares must do more than say that her evaluations were

tainted with bias; she must produce evidence showing that she was, in fact, meeting

the Board’s legitimate expectations.

The evidence does not give rise to a reasonable inference that Alvares was

meeting the Board’s expectations. That she received awards from independent

organizations does not demonstrate that she was meeting the Board’s expectations.

See Smith, 936 F.3d at 560 (“[A] smattering of decent reviews doesn’t overcome the

overwhelming number of documented problems.”). And while Travis and Anderson

stated that Alvares was a good teacher, that is insufficient to create a genuine dispute

of fact about her performance, and their affidavits contain no allegations regarding

Alvares’s performance reviews. See Peele, 288 F.3d at 329 (“[G]eneral statements of

co-workers, indicating that a plaintiff’s job performance was satisfactory, are

insufficient to create a material issue of fact as to whether a plaintiff was meeting

her employer’s legitimate employment expectations at the time she was

terminated.”).

Second, Alvares has not identified a similarly situated employee who received

better treatment. Similarly situated employees need not be identically positioned, but

they must be “‘directly comparable’ to the plaintiff ‘in all material respects.’” Igasaki

v. Ill. Dep’t of Fin. & Pro. Regul., 988 F.3d 948, 958 (7th Cir. 2021) (quoting Patterson

v. Indiana Newspapers, Inc., 589 F.3d 357, 365–66 (7th Cir. 2009)). Alvares relies

entirely on Travis’s affidavit to support this aspect of her case. Specifically, she points

to Travis’s assertions that McGill launched investigations into Alvares and an African

American payroll clerk but never against a white employee, and that other teachers

were not disciplined for tardiness. [85] at 12. But general statements that Alvares

was investigated or disciplined, while other employees were not, do not suffice.

Alvares must instead identify a similarly situated employee outside her protected

class who was treated better than she was—a teacher who was not fired even though

they had poor performance evaluations and worked in a program that was closing

down. She cannot establish a prima facie case under McDonnell Douglas when, as

here, she provides “no evidence concerning a similarly situated employee from which

the district court could draw a comparison.” Igasaki, 988 F.3d at 958.

Third, even if Alvares had met her prima facie burden, the Board would still

be entitled to summary judgment. The Board has offered a legitimate,

nondiscriminatory reason for Alvares’s termination—closure of the business program

due to lack of student interest and desire to create an engineering program—and

Alvares has not produced evidence of pretext. To make a showing of pretext, Alvares

must present evidence suggesting that the Board’s proffered reason is a lie. Marnocha

v. St. Vincent Hosp. & Health Care Ctr., Inc., 986 F.3d 711, 721 (7th Cir. 2021). To

meet this burden, Alvares “‘must identify such weaknesses, implausibilities,

inconsistencies, or contradictions’ in the employer’s asserted ‘reasons that a

reasonable person could find it unworthy of credence.’” Id. (quoting Boumehdi v.

Plastag Holdings, LLC, 489 F.3d 781, 792 (7th Cir. 2007)). Alvares focuses on McGill’s

credibility and says that “it is doubtful that McGill can be trusted.” [85] at 14–15.

But Alvares has not produced any evidence that undercuts the Board’s stated

reasons for closing the business program. On the contrary, Alvares admits that the

business program was “floundering” and student interest in the program declined as

interest in engineering courses rose. [86] ¶¶ 11–17. Alvares introduces a statement

by CPS’s Chief Education Officer announcing a district-wide policy emphasizing the

importance of financial literacy. [91] ¶ 12. But that statement does not conflict with

the closure of Westinghouse’s business program and does not support an inference

that the Board’s explanation for closing a specific program at Westinghouse was a lie.

On this record, no reasonable factfinder could conclude that the Board’s stated

reasons for closing the business program were pretextual.

Alvares’s Title VII claim fares no better under Ortiz’s holistic approach. Under

Ortiz, “all evidence belongs in a single pile and must be evaluated as a whole.” Ortiz,

834 F.3d at 766. But, whether under McDonnell Douglas’s burden-shifting framework

or the Ortiz approach, what matters at summary judgment is whether Alvares

“presented enough evidence to allow the jury to find in [her] favor.” Igasaki, 988 F.3d

at 957–58 (quoting Vega v. Chicago Park Dist., 954 F.3d 996, 1004 (7th Cir. 2020)).

The evidence as a whole suggests that Alvares was laid off because the Board made

the non-discriminatory decision to eliminate the business program and there was no

available opening for her elsewhere. Alvares acknowledged that McGill never called

her any derogatory names. Id. ¶ 69; [84-3] at 47:5–17, 76:10–13. Alvares received

below average ratings, was disciplined several times in recent years, and the business

program struggled to maintain student support. None of Alvares’s evidence suggests

that she was laid off based on her race.

Viewing all of the evidence in the light most favorable to Alvares, a juror might

infer that McGill didn’t like Alvares and treated her harshly. But that is not enough

to suggest racial motivation for the termination. Travis supplies some admissible

evidence of racial bias on McGill’s part, but the connection to Alvares’s layoff is

nonexistent. Alvares concedes that her program closed for nondiscriminatory reasons

and McGill and the Board complied with union-negotiated requirements to terminate

her position. There is no room in the chain of causation for race-based decisionmaking

to supply an explanation for Alvares’s layoff. In short, whether viewed through the

McDonnell Douglas or Ortiz lens, Alvares has not offered evidence to permit a jury to

conclude that the Board discriminated against her on the basis of her race.

V. Conclusion

The motion for summary judgment, [82], is granted. Enter judgment and

terminate civil case.

ENTER:

Manish S.Shah

United States District Judge

Date: May 10, 2021

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