Anna Darchak v. Bd Educ City Chicago

In the

United States Court of Appeals

For the Seventh Circuit

No. 08-2732

A NNA D ARCHAK,

Plaintiff-Appellant,

v.

C ITY OF C HICAGO B OARD OF E DUCATION,

Defendant-Appellee.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 07-C-104—Robert W. Gettleman, Judge.

A RGUED M AY 27, 2009—D ECIDED S EPTEMBER 3, 2009

Before C UDAHY, R IPPLE and W OOD , Circuit Judges.

C UDAHY, Circuit Judge. Anna Darchak is a Polish bilin-

gual teacher whose one-year contract with the Chicago

Public Schools was not renewed after a tumultuous

school year. Darchak claims that she lost her job

because she complained that the school principal was

violating the No Child Left Behind Act. She says the

principal’s hostility also stemmed from her animosity

toward people of Polish descent. Darchak filed this

2 No. 08-2732

lawsuit against the City of Chicago Board of Education

(Board), alleging, inter alia, retaliatory discharge, first

amendment retaliation and national origin discrimina-

tion. The Board offers several explanations for not re-

newing Darchak’s contract: insubordination, ineffective

classroom management and refusal to follow a teaching

schedule. Yet Darchak also offers evidence of discrimina-

tion.

The district court granted the Board’s motion for sum-

mary judgment. We affirm the dismissal of Darchak’s

retaliatory discharge and first amendment retaliation

claims. However, because she has put forth sufficient

evidence of discrimination to reach a jury, we reverse

on her national origin discrimination claim.

I

Anna Darchak moved to the United States from Poland

in 1991. Three years later, she began working for the

Chicago Public School system (CPS) at Taft High School,

where she taught in the Bilingual and English as a

Second Language (ESL) program. She resigned from her

post at Taft in 2002 and took a job with the CPS Office

of Language and Cultural Education (OLCE).

At the beginning of the 2004 school year, Darchak began

providing ESL support to English Language Learn-

ers—students at CPS schools whose native language

was not English. One of these schools was the Princeton

Alternative Center, an elementary school in Chicago. By

February 2005, Darchak was working at Princeton five

No. 08-2732 3

days a week as an ESL and Polish-bilingual teacher. At

that time, most of the students enrolled at Princeton

were Hispanic (77%); there were also African-American

(17%) and Polish (6%) students.

Princeton Principal Rosalva Acevedo hired Darchak as

a full-time teacher for the 2005–2006 school year in antici-

pation of an increase in Polish-speaking students.

Darchak’s status in this new job was that of a Probationary

Appointed Teacher, and she had a one-year contract,

renewable at the end of the school year. Her position

was funded by OLCE and was dependent on the number

of English Language Learners at Princeton.

Darchak claims that within the first month of her full-

time employment at Princeton, she noticed that the His-

panic students were receiving better treatment than the

Polish students: Hispanic students were given better

resources and native language services. When Darchak

approached Acevedo with her concerns, Acevedo

allegedly responded, “[Hispanic students] are better than

Polish and deserve more than Polish people. . . . [I]f you

don’t want to do whatever I tell you to do, you can

leave my school.” At the time, Darchak did not tell

anyone about Acevedo’s remarks. Then, in early Novem-

ber, Acevedo gave Darchak a “cautionary notice” charging

her with “insubordination” for refusing to follow the

ESL teaching schedule. When Darchak confronted

Acevedo about the notice, Acevedo allegedly replied,

“I brought you to this school and you stupid Polack

pushed the teachers against me.”

Darchak immediately began complaining to Acevedo’s

supervisors in meetings and letters about what she per-

4 No. 08-2732

ceived as Acevedo’s mismanagement of the school. In

none of this communication, however, did she mention

Acevedo’s disparaging remarks about Darchak’s national

origin. Though not at issue on appeal, Darchak also

claims that, as a result of Acevedo’s discrimination, she

sought treatment for depression and anxiety beginning

in November 2005.

In March 2006, a teaching position opened in Room 206,

a classroom with a number of English Language Learners,

most of whom were native Spanish speakers. Acevedo

checked with the CPS Accountability Department

to determine whether Darchak was qualified to tempo-

rarily teach the students in Room 206. After confirming

Darchak’s qualifications, Acevedo assigned her to the

classroom on a temporary basis.

Darchak felt that her assignment to Room 206 violated

the federal No Child Left Behind Act because she was not

qualified to teach in a bilingual Spanish classroom. She

repeatedly expressed this concern to Acevedo and to

Acevedo’s supervisors. On March 10, Darchak received

a second cautionary notice, which said that she had been

discourteous and negligent in supervising her students.

This notice was followed by a negative performance

evaluation, which stated that Darchak had difficulty

following rules, interacting with students, and getting

along with other school community members.

Acevedo had received word in February that funding

for Darchak’s position would not be available from

OLCE for the following school year because of declining

enrollment. In mid-March, the Board asked Acevedo

No. 08-2732 5

which Probationary Appointed Teacher contracts she

wanted to renew for the next school year. Despite the cut

in funding, Acevedo chose to renew the contracts of

several probationary teachers, including that of another

Polish teacher. Acevedo could have renewed Darchak’s

contract with funding from Princeton’s discretionary

budget. 1 Acevedo did not recommend renewing Darchak’s

one-year contract, and the Board accepted Acevedo’s

recommendation. In April Darchak took a leave of

absence that she attributed to stress. She never returned

to Princeton. Darchak was officially terminated on

August 31, 2006.

Darchak filed this lawsuit in January 2007, naming the

Board as the sole defendant. Darchak’s complaint alleged

retaliatory discharge, a common law tort under Illinois

law; retaliation for exercising her first amendment

rights in violation of 42 U.S.C. § 1983; national origin

discrimination in violation of Title VII of the Civil

Rights Act of 1964, 42 U.S.C. §§ 2000e-17; and disability

discrimination in violation of the Americans with Disabili-

ties Act (ADA), 42 U.S.C. §§ 12101–12213. The district

court granted summary judgment for the Board.

Darchak appeals her retaliatory discharge, first amendment

retaliation and national origin discrimination claims; she

1

Darchak was one of 1,062 Probationary Appointed Teachers

whose contracts were not renewed for the 2006–2007 school

year; the record does not indicate how many contracts were

renewed. Princeton’s discretionary budget for the 2005–2006

school year was approximately $350,000. Darchak’s yearly

salary was about $80,000.

6 No. 08-2732

does not challenge the dismissal of her ADA claim, and

therefore we do not disturb that ruling.

II

A

To begin, Darchak claims that the Board refused to

renew her teaching contract in retaliation for her com-

plaints that her teaching assignment in Room 206 vio-

lated the federal No Child Left Behind Act. This claim is

styled as an Illinois retaliatory discharge claim, cognizable

here under our supplemental jurisdiction. 28 U.S.C.

§ 1367(a).

To establish a retaliatory discharge, Darchak must

demonstrate that she was “(1) discharged; (2) in retaliation

for her activities; and (3) that the discharge violates a

clear mandate of public policy.” Blount v. Stroud, 904

N.E.2d 1, 9 (Ill. 2009) (citations omitted). Darchak’s

claim fails the first and third of these requirements.

First, Illinois courts evaluating retaliatory discharge

claims have refused “to recognize a claim in any injury

short of actual discharge.” Bajalo v. Northwestern Univ.,

860 N.E.2d 556, 561 (Ill. App. Ct. 2006). “Actual discharge”

means termination of an “at-will” employee—one

whose employment has a nonspecific duration that can

be terminated for any reason—not nonrenewal of a fixed-

term employment contract. Krum v. Chi. Nat’l League Ball

Club, Inc., 851 N.E.2d 621, 624 (Ill. App. Ct. 2006). Indeed,

Illinois appellate courts have expressly refused to

extend the reach of the retaliatory discharge tort to

No. 08-2732 7

cover the nonrenewal of a fixed-term contract. Id. at 625;

see also Bajalo, 860 N.E.2d at 559–63.2 Darchak had a

fixed, one-year contract with the school district. It is

therefore highly unlikely that the Illinois Supreme

court would permit her to bring a retaliatory discharge

claim.

Yet Darchak’s retaliatory discharge claim fails in any

event because the nonrenewal of her contract did not

violate “a clear mandate of public policy.” Although what

counts as a clearly mandated public policy is not

precisely defined, see, e.g., Palmateer v. Int’l Harvester Co.,

421 N.E.2d 876, 878–79 (Ill. 1981); Carty v. Suter Co., Inc.,

863 N.E.2d 771, 774 (Ill. App. Ct. 2007), the tort has been

narrowly construed in Illinois to include only discharges

in retaliation for certain activities, such as reporting an

employer’s criminal violations, Palmateer, 421 N.E.2d at

880, or violations of health and safety standards, Wheeler v.

Caterpillar Tractor Co., 485 N.E.2d 372, 377 (Ill. 1985). See

also Kelsay v. Motorola, Inc., 384 N.E.2d 353, 357–58 (Ill.

2

The Illinois Supreme Court has not addressed this question,

and we therefore look to decisions by the state’s intermediate

appellate courts for guidance. See Goetzke v. Ferro Corp., 280

F.3d 766, 773 (7th Cir. 2002). The Illinois Supreme Court has

addressed putative retaliatory discharge claims brought for

other forms of termination or demotion, and rejected them. See

Zimmerman v. Buchheit of Sparta, Inc., 645 N.E.2d 877, 882 (Ill.

1994) (finding that retaliatory demotion was not a chargeable

tort); Hartlein v. Ill. Power Co., 601 N.E.2d 720, 730 (Ill. 1992)

(holding that constructive discharge could not support a

retaliatory discharge claim).

8 No. 08-2732

1978). The Illinois Supreme Court has defined “public

policy” only within these limited bounds and thus “has

consistently sought to restrict the common law tort of

retaliatory discharge.” Fisher v. Lexington Health Care, Inc.,

722 N.E.2d 1115, 1121 (Ill. 1999) (citing Buckner v. Atlantic

Plant Maintenance, Inc., 694 N.E.2d 565, 569 (Ill. 1998)).

The “public policy” that Darchak cites is found in the

general purpose declaration of the No Child Left Behind

Act: “that all children have a fair, equal, and significant

opportunity to obtain a high-quality education.” 20 U.S.C.

§ 6301. Darchak maintains that the Polish students at

Princeton did not have the same access to a “high-quality”

education as the Hispanic students did. Educational

quality is doubtless an important social objective,

but Illinois courts have never recognized a claim for

retaliatory discharge based on a reported violation of

that policy or any like it, nor do we have reason to

believe that they would do so in an appropriate case. We

therefore affirm the dismissal of Darchak’s retaliatory

discharge claim.

B

Second, Darchak raises a first amendment retaliation

claim under 42 U.S.C. § 1983. She argues that the Board

failed to rehire her in retaliation for her complaints that

Acevedo was violating the No Child Left Behind Act.

Even assuming that Darchak’s complaints are constitu-

tionally protected speech, see Milwaukee Deputy Sheriff’s

Ass’n v. Clarke, 574 F.3d 370, at *4 (7th Cir. 2009), which

in itself is not at all clear, this claim fails for a more

No. 08-2732 9

basic reason. Acevedo has not been named as a defen-

dant. The doctrine of respondeat superior is unavailable

under § 1983, Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694

n.58 (1978), so in order for Darchak’s retaliation claim to

succeed, she must present evidence that the Board itself

violated her civil rights. Municipal agencies can be found

liable under § 1983 for violating a plaintiff’s civil rights

through “(1) an express municipal policy; (2) a widespread

practice constituting custom or usage; or (3) a constitu-

tional injury caused or ratified by a person with final

policymaking authority.” Simmons v. Chi. Bd. of Educ., 289

F.3d 488, 494 (7th Cir. 2002) (citing Kujawski v. Bd. of

Comm’rs, 183 F.3d 734, 737 (7th Cir. 1999)); see City of St.

Louis v. Praprotnik, 485 U.S. 112, 127 (1988) (opinion of

O’Connor, J.). Darchak relies exclusively on an assertion

that Acevedo was a final policymaker.

We agree with the district court that Darchak has

failed to present evidence of Acevedo’s final authority

over the nonrenewal of Darchak’s contract. State law

determines who legally constitutes a final policymaker,

McMillian v. Monroe County, Ala., 520 U.S. 781, 786 (1997)

(citations omitted), and Illinois law clearly assigns re-

sponsibility for personnel decisions to the Board, not to

individual school principals: “The right to employ, dis-

charge, and layoff shall be vested solely with the

board . . . .” 105 ILCS 5/34-8.1; see also Duda v. Bd. of Educ.,

133 F.3d 1054, 1061 (7th Cir. 1998) (“Nothing in the

School Code allows us to infer that a . . . principal has

been delegated policymaking authority with respect to

personnel decisions.”) (citation omitted).

10 No. 08-2732

Darchak argues that, despite the absence of express

authority, Acevedo is a de facto final policymaker

because the Board accepted Acevedo’s recommendation

not to renew Darchak’s contract without performing an

independent review. However, “liability requires more

than the fact that a low level supervisor took some

action that was not later reversed by a policymaker.”

Simmons, 289 F.3d at 494. The Board’s following Acevedo’s

recommendation is not enough to prove that Acevedo

was a final policymaker. To maintain her § 1983 claim,

Darchak must demonstrate that the Board either

delegated final policymaking authority to Acevedo or

ratified Acevedo’s action.

Under the delegation theory, the person or entity with

final policymaking authority must delegate the power to

make policy, not simply the power to make decisions.

“There must be a delegation of authority to set policy

for hiring and firing, not a delegation of only the final

authority to hire and fire.” Kujawski, 183 F.3d at 739

(citations omitted). Darchak presents no evidence that

the Board had entrusted Acevedo with the power to

create employment policy. Again, policymaking is

broader than decisionmaking; the Board’s failure to

review one personnel recommendation does not mean

that the Board systematically allows Acevedo to set

policy on employment decisions or to make final

decisions without Board review. See Rasche v. Vill. of

Beecher, 336 F.3d 588, 600 (7th Cir. 2003) (determining

under Illinois law that if a municipal agency re-

tained authority to review officials’ decisions, the

officials did not have final policymaking authority);

No. 08-2732 11

Gernetzke v. Kenosha Unified Sch. Dist. No. 1, 274 F.3d 464,

469 (7th Cir. 2001) (“Delegation is not direction; authoriza-

tion is not command; permission does not constitute the

permittee the final policymaking authority.”) (citations

omitted); Beattie v. Madison County Sch. Dist., 254 F.3d

595, 602–03 (5th Cir. 2001) (holding that an official is

a “final policymaker” only when her decisions are

“unreviewable by any other body”).

Nor did the Board’s decision to adopt Acevedo’s recom-

mendation without review constitute a ratification of

Acevedo’s action. “[A] § 1983 claim . . . based on a ‘ratifica-

tion’ theory must allege that a municipal official with

final policymaking authority approved the subordinate’s

decision and the basis for it.” Baskin v. City of Des Plaines,

138 F.3d 701, 705 (7th Cir. 1998) (emphasis added). The

Board approved Acevedo’s decision not to renew

Darchak’s contract, but no evidence demonstrates that

the Board was aware of any potential retaliatory basis

for the nonrenewal.

C

Finally, Darchak argues that the Board discriminated

against her on the basis of her national origin in viola-

tion of Title VII. Unlike § 1983, Title VII allows plaintiffs

to use the doctrine of respondeat superior to hold a

municipal agency vicariously liable for the actions of its

employees. Mateu-Anderegg v. Sch. Dist. of Whitefish Bay,

304 F.3d 618, 623–24 (7th Cir. 2002). Darchak claims

that Acevedo’s derogatory remarks about Polish people

demonstrated a discriminatory animus that motivated

12 No. 08-2732

her recommendation not to renew Darchak’s employ-

ment contract. The Board admits that it accepted

Acevedo’s recommendation.

Under Title VII, a plaintiff can prove discrimination

either by presenting evidence of discrimination (the

“direct method” of proof), or by the McDonnell Douglas

burden-shifting approach (the “indirect method”). Winsley

v. Cook County, 563 F.3d 598, 604 (7th Cir. 2009); Antonetti

v. Abbott Labs., 563 F.3d 587, 591 (7th Cir. 2009). Darchak’s

claim fails under the burden-shifting method, because

she has not shown that the Board’s purported reasons

for letting her go—funding cuts and poor perfor-

mance—were pretextual. Her case under the direct

method of proof, however, is not so easy.

Under the direct method of proof, a plaintiff’s claim

survives summary judgment if she can demonstrate

“triable issues as to whether discrimination motivated

the adverse employment action.” Nagle v. Vill. of Calumet

Park, 554 F.3d 1106, 1114 (7th Cir. 2009) (citation omit-

ted). She can establish triable issues using either direct

or circumstantial evidence. Id.; see Atanus v. Perry, 520

F.3d 662, 671 (7th Cir. 2008) (“The focus of the direct

method of proof thus is not whether the evidence

offered is ‘direct’ or ‘circumstantial’ but rather whether

the evidence ‘points directly’ to a discriminatory reason

for the employer’s action.”) (citation omitted). Direct

evidence would be an admission by the decisionmaker

that the adverse employment action was motivated by

discriminatory animus. Nagle, 554 F.3d at 1114. Such

admissions are understandably rare, and lacking here.

No. 08-2732 13

Circumstantial evidence of discrimination, however, is

less rare. We typically point to three categories of cir-

cumstantial evidence in employment discrimination cases:

(1) suspicious timing, ambiguous oral or written

statements, or behavior toward or comments directed

at other employees in the protected group; (2) evi-

dence, whether or not rigorously statistical, that

similarly situated employees outside the protected

class received systematically better treatment; and

(3) evidence that the employee was qualified for the

job in question but was passed over in favor of a

person outside the protected class and the em-

ployer’s reason is a pretext for discrimination.

Sun v. Bd. of Trustees, 473 F.3d 799, 812 (7th Cir. 2007)

(citation omitted); Troupe v. May Dep’t Stores, Inc.,

20 F.3d 734, 736 (7th Cir. 1994).

Darchak presented evidence that Acevedo made deroga-

tory remarks to her about Polish people in October and

November 2005. Acevedo allegedly said that Hispanic

students are “better than Polish” and “deserve more

than Polish people.” She called Darchak a “stupid Polack,”

and told her, “if you don’t want to do whatever I tell you

to do, you can leave my school.” These remarks were

followed shortly by a cautionary notice from Acevedo

charging Darchak with insubordination and, ultimately,

by the nonrenewal of Darchak’s contract several

months later. This evidence fits the first category of

circumstantial evidence listed above. In fact, the deroga-

tory comments allegedly made by Acevedo are less am-

biguous than those in many discrimination cases. The

14 No. 08-2732

“stupid Polack” remark speaks clearly of discriminatory

animus, and the other remarks are suggestive.

The district court dismissed this claim for two reasons.

First, the court stated that Darchak “provide[d] no

support for her allegations besides her own self-serving

deposition transcript.” Darchak v. Bd. of Educ., No. 07-C-104,

2008 WL 4866055, at *6 (N.D. Ill. June 25, 2008). It is true

that uncorroborated, self-serving testimony cannot

support a claim if the testimony is based on “speculation,

intuition, or rumor” or is “inherently implausible.” Payne

v. Pauley, 337 F.3d 767, 773 (7th Cir. 2003). But testimony

based on first-hand experience is none of those things.

Darchak’s testimony presents specific facts, even if that

testimony may be less plausible than the opposing liti-

gant’s conflicting testimony (a question we need not—nay,

cannot—reach). Id. And while it is also true that

isolated remarks are not enough to meet the plaintiff’s

burden, remarks coupled with an adverse employment

action suffice. See Venters v. City of Delphi, 123 F.3d 956, 973

& n.7 (7th Cir. 1997) (citing, inter alia, Shager v. Upjohn Co.,

913 F.2d 398, 402 (7th Cir. 1990)). A reasonable jury could

find Darchak’s report of Acevedo’s remarks convincing,

and it is undisputed that Darchak’s contract was not

renewed at Acevedo’s recommendation and that

contract nonrenewal is an adverse employment action.

Nothing more is needed to demonstrate that a plaintiff

has established a prima facie case under the direct

method of proof. Sylvester v. SOS Children’s Vills. Ill., Inc.,

453 F.3d 900, 905 (7th Cir. 2006). There need not be a rich

and varied body of circumstantial evidence (a “mosaic” of

discrimination, Troupe, 20 F.3d at 737), as long as what

No. 08-2732 15

evidence there is adds up to discriminatory intent. See

Sylvester, 453 F.3d at 903–04.

This brings us to the district court’s second reason for

dismissing Darchak’s discrimination claim: the court

determined that Darchak failed to demonstrate that

“Acevedo’s comments were causally related to her

decision not to renew [Darchak’s contract].” Darchak,

2008 WL 4866055, at *6.3 This appears to be a question of

timing. But the bare fact that Darchak was not fired

immediately after Acevedo allegedly made these

remarks does not destroy the potential causal connection.

The structure of the school year dictated the employment

timetable, and Acevedo may not have been able to recom-

mend nonrenewal of Darchak’s contract any earlier than

she did. In any event, we have previously found that

three to four months between a remark and an employ-

ment action is not so long as to defeat the inference of

a causal nexus, Bellaver v. Quanex Corp., 200 F.3d 485, 493

(7th Cir. 2000), and not much more time than that, if

any, elapsed here.

The connection between Acevedo’s discriminatory

remarks and her ultimate recommendation not to renew

3

The Board argues that Darchak has waived her challenge to

the dismissal of this claim by failing to address the district

court’s finding on causality. Darchak has fairly presented her

argument regarding the Title VII claim, and the Board has

suffered no prejudice from any deficiency in the particularity

with which she presented it. We therefore conclude that

Darchak has not waived her appeal of this claim.

16 No. 08-2732

Darchak’s contract raises a question of intent. The fact

that Acevedo rehired another Polish teacher is evidence

of a possible answer to that question, but, as a question

of intent, it is properly put to the jury, not to the court on

summary judgment. Payne, 337 F.3d at 770. It is possible

the district court simply did not believe Darchak; indeed,

as we have noted, she presented no evidence of Acevedo’s

comments besides her own testimony, and the only

other person present during these conversations—

Acevedo—denies having made them.4 But we repeat that

it is not the court’s job to assess the persuasiveness of

Darchak’s testimony. Giannopoulos v. Brach & Brock Confec-

4

Also suggestive is that Darchak failed to complain about

discrimination until she filed this lawsuit. This can defeat a

claim where an employer has in place anti-discrimination

policies and the employee fails to take advantage of them, see

Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 765 (1998); Faragher

v. City of Boca Raton, 524 U.S. 775, 806–07 (1998), but the Board

may not maintain a Faragher/Ellerth defense here because in

addition to Acevedo’s discriminatory remarks, Darchak has

also shown that she suffered a tangible employment action.

See Jackson v. County of Racine, 474 F.3d 493, 500–01 (7th Cir.

2007) (Ellerth and Faragher established that in situations

where “the supervisor’s harassment resulted in ‘a tangible

employment action, such as discharge, demotion, or undesir-

able reassignment,’ . . . the employer’s vicarious liability is

strict, in the sense that no defense is available once the

other elements of the case have been proven.”) (internal citation

omitted). The district court dismissed a putative hostile

work environment claim on Faragher/Ellerth grounds, but

Darchak has not challenged that ruling.

No. 08-2732 17

tions, Inc., 109 F.3d 406, 410 (7th Cir. 1997) (warning courts

against “invad[ing] the province of the factfinder by

attempting to resolve swearing contests and the like” and

collecting cases). Employment discrimination cases

often center on parties’ intent and credibility, which

must go to a jury unless “no rational factfinder could

draw the contrary inference,” Veprinsky v. Fluor Daniel,

Inc., 87 F.3d 881, 894 (7th Cir. 1996). That is not the case

here.

Finally, even if the Board is able to prove valid

reasons for not renewing Darchak’s contract—OLCE’s

funding cuts as well as Darchak’s performance issues

suggest the Board is able to provide reasons—such proof

does not by itself extinguish Darchak’s claim. This is

because Darchak presented evidence of discrim-

ination, which a jury could find also played a role in the

employment decision. In mixed-motive cases, the defen-

dant “escapes having to pay damages but, by virtue of the

1991 amendment [to the Civil Rights Act], still has to

pay the plaintiff’s attorney’s fees and is also subject to

declaratory and injunctive relief” if the employment

decision had some discriminatory motivation. Boyd v. Ill.

State Police, 384 F.3d 888, 900 (7th Cir. 2004) (Posner, J.,

concurring); see 42 U.S.C. § 2000e-5(g)(2)(B); see also

Venters, 123 F.3d at 973 n.7. Because Darchak’s evidence of

discrimination is sufficient to reach a jury, she does not

bear the burden of proving that the defendant’s reasons

for terminating her were pretextual—such a burden

attaches only under the indirect method of proof, a stan-

dard not applicable here. Venters, 123 F.3d at 974.

18 No. 08-2732

III

The dismissal of Darchak’s retaliatory discharge and

first amendment retaliation claims is A FFIRMED. The

dismissal of her national origin discrimination claim is

R EVERSED and R EMANDED for proceedings consistent

with this opinion.

9-3-09