Springer, Rollie v. Durflinger, Norman

In the

United States Court of Appeals

For the Seventh Circuit

____________

Nos. 06-2168 & 06-2516

ROLLIE SPRINGER, et al.,

Plaintiffs-Appellants,

Cross-Appellees,

v.

NORMAN DURFLINGER, et al.,

Defendants-Appellees,

Cross-Appellants.

____________

Appeals from the United States District Court

for the Central District of Illinois.

No. 03 C 1200—John A. Gorman, Magistrate Judge.

____________

ARGUED SEPTEMBER 6, 2007—DECIDED FEBRUARY 29, 2008

____________

Before FLAUM, MANION, and KANNE, Circuit Judges.

KANNE, Circuit Judge. This “civil rights” case is about

disgruntled parents who disliked their daughters’ high

school softball coach. After voicing their complaints to

school administrators and receiving what they perceived

to be an unsatisfactory response, Rollie and Cynthia

Springer, and Ross and Carla Collins, interpreted a handful

of normal events to be adverse, retaliatory acts on the part

of the school. They filed a § 1983 lawsuit against the school

2 Nos. 06-2168 & 06-2516

district, its board members, and high school officials,

claiming that they were retaliated against in violation of

the First Amendment for having complained about the

coach. Because the parents offer absolutely no evidence to

support their theory of retaliation, the district court’s

summary judgment in favor of the defendants is affirmed.

Additionally, the plaintiffs are ordered to show cause as to

why they should not be held responsible for the defen-

dants’ costs and attorneys’ fees on appeal.

I. HISTORY

Mr. and Mrs. Springer and Mr. and Mrs. Collins were

unhappy with the way the coach of their daughters’ high

school softball team, Stacy Whitcomb, had handled

things during the previous, spring 2001 season. In Decem-

ber 2001, the parents, through an attorney, requested a

meeting with administrators of Morton Community

High School. On January 30, 2002, the parents, along

with their attorney and a local newspaper reporter, met

with the superintendent of the Morton Community Unit

School District 709, Dr. Norman Durflinger; the school

district’s attorney, Dennis Triggs; the principal of Morton

Community High School, Teresa Lane; and the school’s

athletic director, Greg Prichard.

The parents told the school officials that they suspected

that Coach Whitcomb had been suppressing the skills and

abilities of their daughters, Laura Springer and Katie

Collins, in order to showcase Whitcomb’s younger sister,

Sammi, a pitcher on the team. They accused Whitcomb of

doctoring statistics to favor her sister, and complained that

Whitcomb had been abusive to umpires, parents, team

“boosters,” and players. They felt that Whitcomb was

Nos. 06-2168 & 06-2516 3

doing a poor job of coaching the team and that she was not

a positive role model image for their children. Mr. and Mrs.

Collins were particularly upset that their daughter,

Katie—the team’s other pitcher—was not selected for Mid-

Illini Conference honors, and they blamed Whitcomb for

intentionally botching the nomination process.

Superintendent Durflinger committed to investigating

the concerns raised by the Springers and Collinses. Within

a month, the district responded to the parents’ attorney

with a report prepared by Triggs, who had followed-up

on the complaints, talked with Coach Whitcomb, con-

tacted an umpire, reviewed player statistics as reported

by Whitcomb and the local newspaper, and inquired

into the award process for the conference. Ultimately,

Triggs concluded that there was “no evidence warranting

disciplinary or other employment action” with respect to

Whitcomb. He assured the parents’ attorney that “School

Administration and the softball coach herself are com-

mitted to making sure that no player, including Ms.

Katie Collins, will be the subject of unfair treatment.”

According to the parents, the school undertook specific

actions in retaliation against them after they raised

their concerns, effectively punishing them for speaking

out against Coach Whitcomb. They cite, for example, the

school board’s failure to respond to two written re-

quests the parents made to meet with the board about

the softball situation. Yet, the parents acknowledge that

they never took it upon themselves to appear before

the school board to present their concerns at any of the

board’s 22 regularly scheduled, public meetings between

January 30, 2002, and the end of the 2001-2002 school year.

The parents point to other happenings in the spring

of 2002 that they believe evince a retaliatory scheme. On

4 Nos. 06-2168 & 06-2516

one occasion, the parents started a conversation with a

school teacher, who cut the encounter short by saying

school administrators instructed him not to have con-

tact with the parents. Along the same lines, the parents said

that members of the softball community disassociated from

them after the January 30 meeting. And although they did

not volunteer to serve as ticket takers, announcers, or

parent boosters during the 2002 softball season, the parents

were perturbed that neither Coach Whitcomb, nor the

school, asked them to serve in such capacities.

Certain events surrounding the softball games them-

selves were also perceived by the parents as retaliatory.

At the start of the softball season, the school implemented a

new policy—applicable to the public in general—that

prohibited videotaping from behind the backstop at the

catcher’s position. Mr. Collins had previously taped games

from that vantage point. The school installed a wind tarp

on the backstop, which impeded visibility from certain

viewpoints. At one game, a school administrator asked Mr.

Springer to leave the area behind the backstop. The request

was made peacefully and Mr. Springer moved away from

the area. During another game, Coach Whitcomb told Jack

Gross (the newspaper-reporter friend of the parents who

also attended the January 30 meeting) to get off the playing

field—where he had been taking pictures of the game.

The parents also felt that Coach Whitcomb was to blame

when Laura Springer got hit in the head by a softball

during practice on May 8, 2002. Laura was catching

at home plate while Whitcomb was hitting balls to the

infield. The drill had been done in prior practices, and

Laura knew the ball would be coming to her from first

base. At some point during the drill, Laura failed to see the

ball coming and it hit her in the head. Whitcomb was a

Nos. 06-2168 & 06-2516 5

couple feet away from Laura at the time, standing

along the first base line (as she is left-handed), with a bat in

her hands.

At the end of the 2002 season, the Springers and Collinses

missed the awards ceremony “banquet” (not a banquet in

the traditional sense of the word as no food was served and

the entire event lasted less than thirty minutes). The

parents’ daughters had been told via the softball team’s

“phone tree” (through which team members called each

other) that the banquet would start at 7:30 p.m., when it

actually started at 7:00 p.m. However, for some inexplica-

ble reason, neither of the families went to the banquet at

7:30, when they purportedly were told it started.

Finally, a year after the contentious 2002 softball sea-

son ended, Coach Whitcomb talked with an Indiana

University (“IU”) softball coach, Sarah Hayes, about

Katie Collins. The conversation happened at an Illinois

State University softball game that Whitcomb, the

Collinses, and Hayes all happened to be attending. At

the time of the conversation, Katie had already been

offered a spot on the IU softball team for her upcoming

freshman year, but she had not been offered a scholarship.

The Collinses did not hear the conversation between

Whitcomb and Hayes, but Mr. Collins videotaped it from

a distance. Whitcomb testified that she told Hayes that

Katie Collins was a great kid. Whitcomb pointed out

to Hayes that she could see Mr. Collins videotaping

them, and then Whitcomb said, apparently referring to

Mr. Collins, “I just recommend keeping good records

and document[ing].”

Coach Hayes said in her deposition that she remem-

bered leaving the conversation with the impression that

Katie was “an awesome person and a good—had very

6 Nos. 06-2168 & 06-2516

good character, a really hard worker.” She also recalled

“leaving there feeling as though . . . Katie’s parents

were a little bit overbearing.” After some follow-up re-

specting the Collinses, the IU coaches decided that there

was nothing to be concerned about, and Katie played for IU

her freshman year. Katie was not offered a scholarship

because, according to Hayes, “she was at the athletic level

of a walk-on.”

As a result of the scattered incidents following the

January 30 meeting, the Springers and Collinses filed a

civil-rights suit, see 42 U.S.C. § 1983, against Durflinger,

Whitcomb, Prichard, Lane, and the school board members,

in their individual and official capacities. The parents

argued that the school and its employees retaliated against

them in response to an exercise of free speech, in viola-

tion of the First Amendment. The parents also raised a

claim alleging violation of the Equal Protection Clause

of the Fourteenth Amendment, and a claim for inten-

tional infliction of emotional distress. The defendants

raised numerous defenses in response, including quali-

fied immunity, and moved for summary judgment.

The district court found that the Equal Protection

and intentional-infliction-of-emotional-distress claims had

no merit, and it summarily rejected all claims against

the school board and its individual members. With respect

to the remaining defendants, the district court decided that

the parents had standing to bring the First Amendment

retaliation claim, and that they were engaged in constitu-

tionally protected speech when they presented their

complaints about the softball program to Morton’s admin-

istrators on January 30, 2002. However, the court did not

decide whether the alleged retaliatory conduct violated the

parents’ First Amendment rights—a full inquiry into that

Nos. 06-2168 & 06-2516 7

issue was unnecessary because the court granted the

defendant’s summary judgment motion based on the utter

“dearth of evidence” demonstrating retaliatory motive. The

district court also articulated a second ground for granting

summary judgment: qualified immunity based on the fact

that reasonable school officials would not have known that

the events following the January 30 meeting would violate

a person’s clearly established constitutional rights.

The defendants pursued attorneys’ fees in the district

court action. The court denied the petition for fees and

costs. In doing so, the court noted that it based summary

judgment on “the insufficiency of evidentiary support

for several key issues” and that it did not find that “plain-

tiff’s complaint was frivolous or brought in bad faith.”

II. ANALYSIS

On appeal, the parents argue that the district court erred

in granting summary judgment for the defendants because

there is a genuine dispute as to whether the events follow-

ing the January 30 meeting were undertaken by school

officials in retaliation against the parents. They also argue

that the district court erred in deciding that the defendants

were entitled to qualified immunity. The defendants cross-

appeal the district court’s denial of attorneys’ fees and

costs.

To prevail on their § 1983 retaliation claim, the parents

need to prove (1) that they were engaged in constitution-

ally protected speech; (2) that public officials took ad-

verse actions against them; and (3) that the adverse actions

were motivated at least in part as a response to

the plaintiffs’ protected speech. Mosely v. Bd. of Educ. of

Chicago, 434 F.3d 527, 533 (7th Cir. 2006). The parents

8 Nos. 06-2168 & 06-2516

proffer no evidence whatsoever that any of the events

they perceive to be adverse were motivated as a response

to the January 30 meeting. Because this appeal can be

disposed of on that ground alone, we need not decide

whether the district court erred with respect to the first two

prongs of the retaliation analysis, or in its qualified immu-

nity and standing determinations. Smith v. Potter, 445 F.3d

1000, 1009 n.20 (7th Cir. 2006) (“[B]ecause we need not

resolve this issue to dispose of [the] appeal, we reserve

judgment . . . .”); United States v. Espinoza, 256 F.3d 718, 728

(7th Cir. 2001) (“Because we find this issue to be dispositive

of the appeal, we need not address the parties’ other

arguments . . . .”). We thus turn to the district court’s

summary judgment decision, which we review de novo.

Lummis v. State Farm Fire & Cas. Co., 469 F.3d 1098,

1099 (7th Cir. 2006).

Summary judgment is proper where there is no showing

of a genuine issue of material fact in the pleadings, deposi-

tions, answers to interrogatories, admissions to file, and

affidavits, and where the moving party is entitled to

judgment as a matter of law. Fed. R. Civ. P. 56(c). “ ‘A

genuine issue of material fact arises only if sufficient

evidence favoring the nonmoving party exists to permit

a jury to return a verdict for that party.’ ” Sides v. City of

Champaign, 496 F.3d 820, 826 (7th Cir. 2007) (quoting

Brummett v. Sinclair Broad. Group, Inc., 414 F.3d 686, 692 (7th

Cir. 2005)). In determining whether a genuine issue of

material facts exists, all facts are construed in favor of the

nonmoving party, in this case the plaintiffs, Mr. and Mrs.

Springer and Mr. and Mrs. Collins. See Squibb v. Mem’l Med.

Ctr., 497 F.3d 775, 780 (7th Cir. 2007). “But our favor

toward the nonmoving party does not relieve it of the

obligation to ‘do more than simply show that there is some

Nos. 06-2168 & 06-2516 9

metaphysical doubt as to the material facts.’ ” Waukesha

Foundry, Inc. v. Indus. Eng’g, Inc., 91 F.3d 1002, 1007 (7th

Cir. 1996) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio

Corp., 475 U.S. 574, 586 (1986)).

There is a dispute here in the generic sense—the parties

adamantly dispute the explanations for the various

events that occurred after the January 30 meeting. The

parents argue that the events were fueled by the school’s

retaliatory motives. The school officials, on the other

hand, say they made policy decisions based on factors

wholly distinct from the Springers’ and Collinses’ com-

plaints. This disagreement centers on the parents’ specu-

lation about the school’s retaliatory motives. But, “[i]t is

well-settled that speculation may not be used to manufac-

ture a genuine issue of fact.” Amadio v. Ford Motor Co., 238

F.3d 919, 927 (7th Cir. 2001); see also Borcky v. Maytag Corp.,

248 F.3d 691, 695 (7th Cir. 2001) (“The mere existence of

some alleged factual dispute will not defeat an otherwise

properly supported motion for summary judgment . . . .

Speculation will not suffice.” (internal citations and

quotation marks omitted)).

The parents’ argument in opposition to summary judg-

ment boils down to an allegation that defense witnesses are

lying and the stated reasons for the school’s actions are

phony. They argue that there are “two sides to every story,

which makes this a perfect credibility case for a jury to

decide.” The parents correctly note that evaluations of

witness credibility are inappropriate at the summary

judgment stage. See Washington v. Haupert, 481 F.3d 543,

550 (7th Cir. 2007). However, when challenges to witness’

credibility are all that a plaintiff relies on, and he has

shown no independent facts—no proof—to support his

claims, summary judgment in favor of the defendant is

10 Nos. 06-2168 & 06-2516

proper. Dugan v. Smerwick Sewerage Co., 142 F.3d 398, 406

(7th Cir. 1998) (“[T]he prospect of challenging a witness’

credibility is not alone enough to avoid summary judg-

ment.”).

As we have said before, summary judgment “ ‘is the put

up or shut up moment in a lawsuit, when a party must

show what evidence it has that would convince a trier of

fact to accept its version of the events.’ ” Steen v. Myers, 486

F.3d 1017, 1022 (7th Cir. 2007) (quoting Hammel v. Eau Galle

Cheese Factory, 407 F.3d 852, 859 (7th Cir. 2005)). Here, all

the plaintiffs have to go on is a collective hunch about the

defendant’s motives, which in itself will not survive a

motion for summary judgment. See Rand v. CF Indus., Inc.,

42 F.3d 1139, 1146 (7th Cir. 1994) (“Inferences and opinions

must be grounded on more than flights of fancy, specula-

tions, hunches, intuitions, or rumors, and ‘[d]iscrimination

law would be unmanageable if disgruntled

employees . . . could defeat summary judgment by affida-

vits speculating about the defendant’s motives.’ ” (quoting

Visser v. Packer Eng’g Assocs., Inc., 924 F.2d 655, 659 (7th Cir.

1991))).

The parents have no personal knowledge of the defen-

dants’ motives for each act, nor can they point to docu-

ments, statements, or other proofs of retaliation. In re-

sponse to deposition questions about whether they

could prove retaliation, the parents revealed the specula-

tive nature of their theory: “my common sense tells me

it was”; “I felt that was obvious . . . no one told me that.”;

“They don’t have to tell me. They did it.”; “I don’t believe

that Norm stated that it was in retaliation. It was only

a concurrence of situations that happened during the

season to be able to put that together . . . . Nobody has

stated that it was retaliation”; “I believe their actions were,

Nos. 06-2168 & 06-2516 11

yes, retaliations against us after that meeting.”; “It was

what they did, not what they told.”; “Actions speak louder

than words.”; “they didn’t call it anything . . . they just did

it.”; “I didn’t have to ask. I knew why.” These statements

exist—highlighting the complete lack of evidence—for

every single alleged retaliatory act.

Without actual proof of retaliation, the parents ask us

to infer from the timing of the events (after the Janu-

ary 30 meeting), that there is a genuine issue of material

fact. “However, as we have stated on many occasions,

‘timing alone is insufficient to establish a genuine issue

of material fact to support a retaliation claim.’ ” Brown v. Ill.

Dep’t of Natural Res., 499 F.3d 675, 685 (7th Cir. 2007)

(quoting Kampmier v. Emeritus Corp., 472 F.3d 930, 939 (7th

Cir. 2007)); see also Wyninger v. New Venture Gear, Inc., 361

F.3d 965, 981 (7th Cir. 2004) (“ ‘[M]ere temporal proximity’

is not enough to establish a genuine issue of material fact.”

(quoting Stone v. City of Indianapolis Pub. Utils. Div., 281

F.3d 640, 644 (7th Cir. 2002))).

The parents argue that the few available scraps of

circumstantial evidence, when pieced together, prove

retaliation. They cite Sylvester v. SOS Children’s Villages

Illinois, Inc., 453 F.3d 900 (7th Cir. 2006), for the proposition

that “ ‘a number of weak proofs can add up to a strong

proof.’ ” Id. at 903 (quoting Mataya v. Kingston, 371 F.3d 353,

358 (7th Cir. 2004)). In Sylvester—a retaliation case in the

employment context—the plaintiff was fired shortly after

having made a sexual harassment complaint; her employer

had just given her a positive performance review; and the

board authorized her termination depending on how she

reacted to the firing of other sexual harassment complain-

ants. Id. at 905. What distinguishes this case from Sylvester

is the nature of the circumstantial evidence: the timing,

12 Nos. 06-2168 & 06-2516

unusualness, and severity of the employer’s acts in

Sylvester combined to create a genuine issue of material fact

about retaliation.

In contrast, the type of circumstantial evidence in the

instant case is totally unremarkable because of its

normalness. Each of the alleged retaliatory events—and the

combination of events like these—predictably occur in high

schools around the nation every spring. Schools improve

their fields and backstops, react to complaints

by implementing new policies that affect some parents

more than others, and respond to disruptive parents

and spectators as a matter of course. Some parents are

chosen to be team boosters, while others are not. Some

parents avoid others who are seen as complainers, or

with whom they disagree about how a sports team

should be run. Inattentive kids playing sports get hit

by balls. Details about sports banquets get muddled

when students call each other. Teachers are told not to talk

to certain parents when attorneys are involved in

the situation. One coach shares her personal opinions about

a player and the player’s family with a prospective

coach—an act akin to a former employer giving a negative

reference to a prospective employer, which typically

enjoys some form of qualified immunity. See, e.g., Delloma

v. Consolidation Coal Co., 996 F.2d 168, 171-72 (7th Cir. 1993).

We cannot infer that these separate incidents— which

easily could have happened to numerous softball families

in high schools across America last season— amount to

circumstantial evidence of retaliation. Cf. East-Miller v. Lake

County Highway Dept., 421 F.3d 558, 564 (7th Cir. 2005)

(“Inferring race discrimination from these minor

incidents . . . requires a huge inferential leap that we will

not take.”).

Nos. 06-2168 & 06-2516 13

Based on the evidence before the district court, or more

accurately, the “dearth of evidence” that the acts after

the January 30 meeting were undertaken in retaliation, the

facts are wholly insufficient to allow a jury to find in favor

of the parents. Thus, summary judgment was proper.

As for the district court’s denial of the defendant’s

petition for fees and costs, we do not find an abuse of

discretion. See Cruz v. Town of Cicero, 275 F.3d 579, 591 (7th

Cir. 2001) (“This court reviews a district court’s award or

denial of fees . . . using the deferential abuse of discretion

standard . . . .”). The district court specifically noted that

the complaint was neither frivolous, nor brought in bad

faith. If we were in the district court’s position, considering

the facts in the first instance, we may well have come to a

different conclusion regarding an award of attorneys’ fees.

It may have been error— considering the deficiency of

evidence—to allow this case to proceed to the discovery

phase in the first place. But given that the parents did make

it to discovery, they cannot be faulted for trying, but

ultimately failing, to gather sufficient evidence of retalia-

tion.

That being said, we are not at all sympathetic to the

parents’ appeal. They have never been able to point to

one shred of evidence demonstrating retaliation. To

insist that there is a genuine issue of material fact in

this case is beyond the pale, and an appeal arguing

as much is frivolous. The parents may have caught one

break from the district court, but we are not inclined to

give them another one. “[A]ppeals such as this not only

bring the courts into disrepute but also divert scarce

judicial time from other litigants who have serious

claims or defenses.” Schlessinger v. Salimes, 100 F.3d

519, 523 (7th Cir. 1996). We therefore order the plaintiffs to

14 Nos. 06-2168 & 06-2516

show cause, within 10 days after the conclusion of

this appeal, as to why they should not be required, under

Rule 38 of the Federal Rules of Appellate Procedure, to

pay the defendants’ costs and reasonable attorneys’ fees

on appeal.

III. CONCLUSION

For the foregoing reasons, we AFFIRM the judgment of the

district court. Moreover, we ORDER plaintiffs to show cause

why they should not be sanctioned for filing this frivolous

appeal.

USCA-02-C-0072—2-29-08