# Appendix — Cromley v. Board of Education > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386003_1670%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1994 - **Citation:** 513 U.S. 816 ## Text 1 In the United States Court of Appeals For the Seventh Circuit No. 93-1300 MARCELLA ANN CROMLEY, Plaintiff-A ppellant, Vv. BOARD OF EDUCATION OF LOCKPORT TOWNSHIP HiGH SCHOOL DisTRICT 205, DONALD E. WEBER, RICHARD J. DITTLE, et al., Defendants-Appellees. Appeal from the United States District Court for the Northern District of Dlinois, Eastern Division. No. 87 C 9767—James B. Moran, Chief Fudge. ARGUED SEPTEMBER 30, 1993—DecipED MARCH 3, 1994 Before FAIRCHILD, CorrEy and RIPPLE, Circuit Judges. RIPPLE, Circuit Judge. Marcella Ann Cromley, a high school teacher, brought an action under 42 U.S.C. § 1983. She claimed that she had been denied various administra- tive positions because she had exercised her right to free speech as guaranteed by the First Amendment and made applicable to the states by the Fourteenth Amendment. feng istrict court granted summary judgment to the de- fendants Board of Education of Lockport Township High School District 205 and its superintendent, assistant super- intendent, principal, and one teacher (the “defendants”). 2 No. 93-1300 It also denied Ms. Cromley’s motion to disqualify defen- dants’ attorneys. She now appeals the judgment of the district court. For the reasons that follow, we affirm. I BACKGROUND A. The First Amendment Retaliation Claim’ Ms. Cromley has been a high school reading instructor in the Lockport To School District 205 since 1974. She had served as of the ment and “Chapter I Coordinator” from 1978 to 1 In December 1986, two students complained to her of sexual misconduct by a male teacher in her department, Donald Meints. After Ms. Cromley informed her , prin- cipal Richard Dittle, he wadertook an investigation. tater. views with the students and with Meints established that the allegations were basically true. The and other administrators decided that Meints be reprimanded and warned. Although a written of the repri included in Meints’ nnel file or sent to the Illinois Department of Children and and Family Services (“DCFS’’). However, on February 12, 1987, Ms. Cromley reported Goutep so teal Moreover, on March 4, 1987 Ms. iat alee ovaaain, ts Chair, gave Meints a Reading Department was Ses Gaiag mien English Deperteceltt and eed bs Gael ae cea tele ee : : No. 93-1300 3 English Department. Ms. Cromley’s later applications to serve as Chapter I Coordinator, Associate English Depart- ment Chair, > tad been, pretend and tanppelated cock Soul snd the experkstandient In light of these clashes, the principal and assistant superintendent agreed that they could not recommend either Ms. Cromley or Mr. Meints for leadership positions. Ms. Cromley filed suit on November 12, 1987 under 42 U.S.C. § 1983, 3, against the Board of Education, the named administrators, and Donald Meints. The complaint alleged that the defendants had retaliated against her because she had complained to DCF'S about the sexual misconduct of Meints, a complaint which she asserted was protected On November 8, 1989, after two years of pretrial liti tion, Ms. Cromley’s attorney, Larry Weiner, partnership in the law firm of Scariano, Kula, Ellch & Chtd., which was the defendants. The district court ted Mr. Weiner’s oral motion to with- draw as Ms. Cromley’ attorney on November 29, 1989, and, on December 15, 1989, Mr. Weiner formally became a partner. Ms. Cromley moved for the disqualification of the Scariano firm from representation of the defendants. B. District Court Decisions By Order of March 19, 1990, the district court denied Ms. C Cromley’s motion to disqualify defendants’ attorneys the ground that the “barriers erected between the at- y and his new law firm with respect to this case are por Aer rebut the = of shared confidences.” Cromley v. ee E ae ag Raver: ay gt warty "No, £1 ae 371 aT ND. 4 No. 93-1300 By Order of January 6, 1993, the district court granted defendants’ motion for summary judgment. Cromley v. Board of Educ., No. 87 C 9767, 1993 WL 5934 (N.D. II. Jan. 6, 1993). The court set forth the framework for ana- izing 2 ne we ak (+ this analy os arg t sis requires t in order ~ be afforded First Amendment protection, the employee’s speech must relate to a matter of public con- cern and the employee’s right to speak out must outweigh the government’s interest in promoting effective and ef- ficient public service. See Connick v. Myers, 461 U.S. 138, 147-54 (1983). The court noted that, under this analysis, DCPS was did not dispute that Ms. Cromley’s call to S was protected speech. However, the court held Ms. Cromley’s written annual evaluation of Meints pre weeks later was private communication that was not protected speech. With respect to this latter commu- nication, the court reasoned that this critical evaluation, following Ms. Cromley’s earlier ints about Meints to oe school he peer toms why (for which Meints received an oral repriman , Was a persistent re-raising of a closed issue rather than protected speech to matters of public concern. It further noted that Ms. Cromley’s supervisors could take into account the impact (eee ee ee school when deciding whether her to continue in a supervisory capacity.? The district court then considered whether there was sufficient evidence for a trier of fact reasonably to con- clude that the protected speech (Ms. Cromley’s phone call to DCFS) was a substantial and motivating cause of the merger and of her failure to attain leadership positions. The court noted that the School Board’s decision focused on Ms. Cromley’s administrative rather than on her teach- 2 The district court’s characterization of the evaluation is not con- omega en tlie meee salaried ness of that holding. eeemnneeneenmeniel No. 93-1300 5 ing abilities; the clear concern was the possible repercus- sion resulting from placing either Ms. Cromley or Meints in a supervisory position over the other. The district court concluded, therefore, that Ms. Cromley’s protected speech had not been a substantial factor in the ’s decision. As an alternate holding, the district court held that, even if the protected had been a substantial factor, a trier of fact could not conclude reasonably that, “but for the single call to DCFS,” there would have been no mer- ger. Nor could it conclude reasonably that Ms. Cromley would have been selected as English Department Chair, Associate Chair, or Chapter I Coordinator. Accordingly, the district court granted summary judgment to all de- fendants. II ANALYSIS Ms. Cromley submits on appeal that the district court erred in denying the disqualification of the Scariano law firm representing the defendants and in granting summary judgment to the defendants. We shall consider each issue in turn. A. Attorney Disqualification Our review of the district court’s decision whether to disqualify an attorney is usually a deferential one: We shall reverse that determination only if the district court abused its discretion. United States v. Smith, 995 F.2d 662, 675 (7th Cir. 1993), cert. denied, 1993 WL 481727, 62 USLW 3452 (Jan. 10, 1994) (No. 93-6704); Owen v. Wangerin, 985 F.2d 312, 317 (7th Cir. 1993); United States v. Defazio, 899 F.2d 626, 629 (7th Cir. 1990). However, when all evi- dence is submitted in the form of affidavits, and when the district court does not hold an evidentiary hearing or make findings of fact to which we must defer, “district courts enjoy no particular advantage over appellate courts in their formulation of ethical norms.” Freeman v. Chicago 6 No. 93-1300 Musical Instrument Co., 689 F.2d 715, 721 (7th Cir. 1982). After a complete review of the record, we conclude that the district court’s decision to deny Ms. Cromley’s motion to disqualify must be affirmed under either an abuse of discretion or de novo standard of review. The approach taken by this circuit for determining whether an attorney should be disqualified is a three-step analysis. First, we must determine whether a substantial re- lationship exists between the subject matter of the prior and present representations. If we conclude a substantial relationship does exist, we must next as- certain whether the presumption of shared confidences with respect to the prior representation has been re- butted. If we conclude this presumption has not been rebutted, we must then determine whether the pre- sumption of shared confidences has been rebutted with respect to the present representation. Failure to rebut this presumption would also make the dis- qualification proper. Schiessle v. Stephens, 717 F.2d 417, 420 (7th Cir. 1983) (citing LaSalle Nat'l Bank v. Lake County, 703 F.2d 252, 255-56 (7th Cir. 1983)); see also United States v. Goot, 894 F.2d 231, 235 (7th Cir.), cert. denied, 498 U.S. 811 (1990); Freeman, 689 F.2d at 722; Westinghouse Elec. Corp. v. Gulf Oil Corp., 588 F.2d 221, 225 (7th Cir. 1978). The “substantial relationship” test is easily met in this case. It is undisputed that the subject matter under scru- tiny both before and after Mr. Weiner changed law firms was the litigation brought by Ms. Cromley against the School Board. The only change made was attorney Weiner’s shift from the firm of Schwartz & Freeman, the firm rep- resenting Ms. Cromley, to that of Scariano, Kula, Ellch & Himes, the firm representing the School Board. Because Mr. Weiner’s representation of Ms. Cromley before he moved to the Scariano firm is substantially related to his new firm’s relationship to the School Board, a “presump- tion of shared confidences” arises: ian apne No. 93-1300 7 Implicit in a finding of substantial relationship is a presumption that particular individuals in a law firm freely share their client’s confidences with one another. . . . (However, in Novo, we recognized that the presumption that an attorney has knowledge of the confidences and secrets of his firm’s clients is rebuttable. Freeman, 689 F.2d at 722 (citing Novo Terapeutisk Lab- oratorium v. Baxter Travenol Lab., Inc., 607 F.2d 186, 197 (7th Cir. 1979) (en bane). As a first step in deciding whether that presumption has been rebutted, “we must determine whether the attorney whose change of employment created the disqualification issue was actually privy to any confidential information his prior law firm received from the party now seeking disqualification of his present firm.” Jd. The rebuttal can be established either by proof that “the attorney in ques- tion had no knowledge of the information, confidences and/ or secrets related by the client in the prior representa- tion,” see Schiessle, 717 F.2d at 420 (citing Freeman, 689 F.2d at 723), or by proof that screening procedures were timely employed in the new law firm to prevent the dis- closure of information and secrets, see Goot, 894 F.2d at 235 (citing LaSalle Nat'l Bank, 703 F.2d at 259). Uncon- troverted affidavits are sufficient rebuttal evidence. Free- man, 689 F.2d at 723; Novo, 607 F.2d at 197. 3 In Analytica, Inc. v. NPD Research Inc., 708 F.2d 1263 (7th Cir. 1983), this court held that the presumption of shared confi- dences was irrebuttable when an entire law firm changed sides. ever lawyers in the new firm are handling new matter.” Id. dants. This circumstance falls within the ex eigen seg sry Analytica; therefore our analysis does not conflict with that deci- sion. See Schiessle, 717 F.2d at 420 n.2. 8 No. 93-1300 Because Mr. Weiner, Ms. Cromley’s attorney for two years, clearly had confidential information from his client when he moved to the firm representing the defendant School Board, we must focus on whether the Scariano law firm that Mr. Weiner later joined has demonstrated that it had established an effective screening procedure to block the i" of Ms. Cromley’s confidences within the *“ne > [TJhe presumption of shared confidences could be re- butted by demonstrating that “specific institutional mechanisms” (e.g., “Chinese Walls”) had been imple- mented to effectively insulate against any flow of con- fidential information from the “infected” attorney to any other member of his present firm. Schiessle, 717 F.2d at 421 (citing LaSalle Nat'l Bank, 703 F.2d at 259). The types of institutional mechanisms that have been determined to protect successfully the confiden- tiality of the attorney-client relationship include: (1) instruc- tions, given to all members of the new firm, of the attor- ney’s recusal and of the ban on exchange of information; (2) prohibited access to the files and other information on the case; (8) locked case files with keys distributed to a select few; (4) secret codes necessary to access pertinent information on electronic hardware; and (5) prohibited shar- ing in the fees derived from such litigation. See Goot, 894 F.2d at 235-36; Schiessle, 717 F.2d at 421; LaSalle Nat’l Bank, 703 F.2d at 259. Moreover, the screening devices must be employed “as soon as the ‘disqualifying event occurred.’ ” Goot, 894 F.2d at 235 (quoting Nat’l Bank, 703 F.2d at 259). Other factors have been consid- ered helpful in determining whether adequate protection of the former client’s confidences has been achieved: the size of the law firm, its structural divisions, the “screened” attorney’s position in the firm, the likelihood of contact between the “screened” attorney and one representing another party, and the fact that a law firm’s and lawyer’s most valuable asset is “their reputations for honesty and integrity, along with competence.” Analytica, 708 F.2d at 1276-77 (Coffey, J., dissenting); see also Schiessle, 717 No. 93-1300 9 F.2d at 421; Freeman, 689 F.2d at 723. In addition, the attorneys in question must have affirmed these screen- ing devices under oath. See Goot, 894 F.2d at 235; LaSalle Nat’l Bank, 703 F.2d at 259. The district court must find that the internal safeguards applied indeed did shield ef- fectively the “tainted attorney.” In this case, the defendants have rebutted the presump- tion of shared confidences by describing the timely estab- lishment of a eaneerne process. When Mr. Weiner joined the firm he was denied access to the relevarit files, which were located in a different office, under the control of David Kula, the partner handling the case. Mr. Weiner and all employees of the firm were admonished not to discuss any aspect of the case, and all were subject to discipline. In addition, Mr. Weiner was not allowed to share in the fees derived from this case. The defendants also submitted the affidavit of David Kula, the attorney representing them. In that sworn statement Mr. Kula stated that, as soon as he was informed that his law firm was discussing with Mr. Weiner the possibility of Mr. Weiner’s joining the law firm, he and Mr. Weiner “agreed that absolutely nothing of a substantive nature regarding the instant lawsuit would occur” until decisions were made and the clients were made aware of them. R.51, Aff. at 2. The affidavit describes the procedures that were put in effect from December 15, 1989, the date that Mr. Weiner joined the firm. Mr. Weiner’s new office was in Scariano’s downtown Chicago building, and Mr. Kula’s office was lo- cated in the firm’s Chicago Heights office; each came to the other office only for specific business. Mr. Kula main- tained the files for this case in his private office. When it implemented specific screening procedures, the firm re- quired all members and employees of the firm to read and sign the memorandum describing the internal rules. R.51, Ex. A (Memorandum) and Ex. B (checklist of all employees of firm). Mr. Kula affirmed that “all of the ad- monitions of the screening memo have been adhered to by all attorneys and all support staff employed by this firm.”? We conclude, as did the district court, that the — 10 10 No. 93-1300 Scariano law firm successfully rebutted the presumption of shared confidences by proving that the screening pro- cedures were timely employed and fully implemented. Nevertheless, Ms. Cromley contends that a per se rule of disqualification is needed in this case: This court should require the withdrawal both of her former attorney and of the Scariano law firm he joined while representing her. Even if “specific institutional mechanisms” are in place, she insists, they cannot go far enough “to maintain pub- lic confidence i in the legal profession.” Freeman, 689 F.2d at 721 We cannot agree with this contention. In the first place, the presumption of shared confidences has been found to be irrebuttable only when an entire law firm changes sides, see Analytica, 708 F.2d at 1267, and not when one attorney changes sides. Moreover, in Freeman, this court that, although the court’s duty is “to safeguard the sacrosanct privacy of the attorney-client relationship,” it must also be recognized that “disqualification, as a pro- phylactic device for protecting the attorney-client relation- ship, is a drastic measure which courts should hesitate to impose except when absolutely necessary.” Freeman, 689 F.2d at 721. Thus, in deciding the appropriate safe- guards necessary in the case of attorney di ification, we must balance the respective interests of the a, and the public. See Goot, 894 F.2d at 236. We hold that the measures employed by the Scariano law firm suffi- ciently screened Ms. Cromley’s former counsel from the School Board’s present counsel. Taking another approach, Ms. Cromley also suggests that Mr. Weiner has not avoided “even the appearance of professional impropriety,” in contravention of Canons 4 and 9 of the American Bar Association’s Code of Pro- fessional ‘esponsibility. We are constrained to we believe that the carefully constructed safeguards do indeed avoid the appearance of impropriety: The test has been described by this circuit as em- bodying the substance of Canon 4 of the A.B.A. Code of Professional Responsibility, which protects the con- SE PPE 11 No. 93-1300 11 fidences of a client against disclosure and possible use against him, and of Canon 9, which provides that an attorney must avoid even the appearance of impro- priety. Thus, the question before a district court con- sidering a motion for disqualification is “whether it could reasonably be said that during the former rep- resentation the attorney might have acquired informa- tion related to the subject matter of the subsequent representation.” . LaSalle Nat’l Bank, 703 F.2d at 255 (quoting Cannon v. U.S. Acoustics Corp., 398 F. Supp. 209, 223 (N.D. Il. 1975), aff'd in part, rev'd in part, 532 F.2d 1118 (7th Cir. 1976)). Accordingly, our analysis under the three-prong “substantial relationship” test, which has led us to the conclusion that disqualification is not required, likewise causes us to conclude that attorney Weiner has not breached the Code of Professional Ethics in his representation of Ms. Cromley. The district court, following the three-step test for dis- qualification of attorneys, found that the barriers erected between the attorney and his new firm were appropriate. The record is devoid of any evidence that Mr. Weiner ac- tually divulged client confidences. Therefore, we conclude that the district court did not err in determining that Scariano’s screening process was sufficient to prevent dis- qualification. B. Summary Judgment Ms. Cromley’s challenge to the summary judgment de- termination is a narrow one.‘ She states that the defen- 4 Ms. Cromley asserts that, because the defendants failed to file the depositions in support of their motion for summary judgment, reversal of the summary judgment determination is required under Rule 56 of the Federal Rules of Civil Procedure and Rule 12(m) of the Local General Rules for the United States District Court for the Northern District of Illinois. This position is untenable. It is clear that the local rules of the district afforded Ms. Cromley ample opportunity to submit whatever .oe testimony she believed appropriate. See Local General Rule 18. 12 12 No. 93-1300 dants abolished her position as Chair of the Reading De- sag and merged the Reading Department into the nglish Department, only after she her constitution- ally protected complaint about another teacher’s sexual misconduct to DCF'S. She then contends that the defen- dants have failed to come forward with evidence that her complaint was not a substantial motivating factor in the abolition of her position. .- At the outset, we note that the district court resolved this issue against the backdrop of settled law that a public employee cannot be dismissed for the nondisruptive ex- ercise of his First Amendment right to speak out on “a matter of legitimate public concern.” Connick v. Myers, 461 U.S. 138, 145 (1983) (quoting Pickering v. Board of Education, 391 U.S. 568, 571 (1968)). Under the analysis employed in Connick, a public employee may be disci- plined for speech on a matter of public concern only when the importance of that speech is outweighed by ‘ gov- ernment’s interest in the effective and efficient fulfillment of its responsibilities to the public.” Connick, 461 U.S. at 150. When measured against the analytical approach man- dated by Connick, it is clear that the district court’s de- termination that Ms. Cromley’s call to DCFS was b aad tected expression rests on solid ground.® First, it is clear that the speech involved a matter of public concern. Con- nick elaborates that “{w]Jhether an employee’s speech ad- dresses a matter of public concern must be determined by the content, form, and context of a given statement.” Id. at 147-48. Here, the communication on possible child abuse was made by Ms. Cromley in her capacity as an official of the school system to the authorities responsi- ble for protecting children from such harm. Second, we have no quarrel with the district court’s determination 5 The district court addressed this matter in its earlier opinion dealing with the sufficiency of the complaint. See Cromley, 699 F. Supp. at 1297. 13 No. 93-1300 13 that the importance of reporting such activities to author- ities charged with the responsibility of protecting children outweighs whatever disruptive ect making such a call might have on the school office. We turn therefore to Ms. Cromley’s claim that the de- fendants have failed to prove that her protected speech, the call to DCFS, was not a substantial or motivating fac- tor in the abolition of her position as Chair of the Reading Department. She bases her claim on the Supreme Court decision Mount Healthy City School District Board of Education v. Doyle, 429 U.S. a4 (1977). Ms. Cromley » Eng cnrdbanbpane that Mount Healthy the | the fs proper test to app conduct protected the First Amendment (as ge Pale by Connick) is al- al to have played a part in the decision not to rehire a public employee: The test is “one which likewise pro- tects against the invasion of constitutional rights without commanding undesirable uences not necessary to the assurance of those rights.” Mount Healthy, 429 U.S. at 287. It is a burden-shifting formula: Initially, in this case, the burzen was properly placed upon respondent to show that his conduct was con- stitutionally Fe and that this conduct was a “substantial —or, to put it m other words, that it was a “motivating factor” in the Board’s decision not to rehire him. nmdent having carried that burden, however, the District Court should have gone on to determine whether the Board had shown by a preponderance of the evidence that it would have reached the same decision as to respondent’s reem- ployment even in the absence of the protected conduct. Id.; see Price Waterhouse v. Hopkins, 490 U.S. 228, 245 (1989) (characterizing the Mount Healthy test as a “ba- lance of burdens’’). The plaintiff who alleges retaliation for the exercise of his constitutionally protected rights thus has the burden of showing that the protected con- duct was a “substantial” or “motivating” factor in the defendant’s action. O’Connor v. Chicago Transit Auth., 14 14 No. 93-1300 985 F.2d 1362, 1368 (7th Cir. 1993). If the plaintiff meets this burden, the burden then shifts to the defendant to prove by a preponderance of the evidence that the plain- tiff would not have attained the position he sought even without the protected speech considerations. Garrett v. Barnes, 961 F.2d 629, 632 (7th Cir. 1992). Under this test, “the fact that [the plaintiff's) protected speech may precede an adverse employment decision alone does not establish causation under Mount Healthy.” O’Con- nor, 985 F.2d at 1370. The plaintiff could have been turned down “for a good reason or for no reason at all,” as long as it was not because of constitutionally protected activ- ities. Garrett, 961 F.2d at 633. The defendant does not have to prove a legitimate reason for taking adverse ac- tion against the plaintiff until the plaintiff has come forth with sufficient evidence to support a prima facie case of substantial motivation. Jd. An employer’s presentation of uncontradicted evidence that the department was being reorganized establishes a legitimate reason for not reap- pointing this plaintiff. Jd. at 634 (stating that a “re-orga- nization is a legitimate reason to terminate someone who is performing satisfactorily”) (citing Misek v. City of Chi- cago, 783 F.2d 98 (7th Cir. 1986)). The plaintiff can, of course, challenge the legitimacy of the reorganization. Jd. The district court was of the view that Ms. Cromley failed to produce evidence sufficient to support a finding that the call to DCFS, admittedly protected speech, was a substantial factor in the decision not to renew her ad- ministrative position. It was also of the view, expressed as an alternative holding, that, even if the call had been a substantial factor in the decision, it was clear that the decision not to reappoint her would have been made in any event. We believe that the district court was correct in both estimations. Ms. Cromley contends that the decision to merge these departments was made spontaneously on March 27, 1989, and was not based on any legitimate educational purpose. See R.101, ¢{ 11.03, 11.04 at 8-9 (Plaintiff's Response to : 4 a i 15 No. 93-1300 15 Defendants’ Statement of Uncontested Facts). The defen- dants agree that Ms. Cromley was told of the merger by the principal on March 27, 1989, but explain that the mer- ger had been recommended in 1982, and that discussions had been ongoing at the administrative level since the fall of 1986 and were “probably finalized in early March [1987] ing curriculum and implementation of the English recommendations.” R.95, 4{ 11.08, 11.04 at 62 (Defendants’ Statement of Uncontested Facts). Even though she dis- putes these facts, Ms. Cromley does not deny a conver- sation in 1986 with the assistant principal concerning the administration’s reasons for wanting a merger of the two departments.® Because these statements by the defendants, including some taken from the plaintiff's own deposition, are uncontested, they must be treated by the court as admitted. See Schulz v. Serfilco, Ltd., 965 F.2d 516, 519 (7th Cir. 1992) (stating that, because plaintiff failed to re- spond to enumerated Rule 12(m) statements, the facts were deemed admitted by plaintiff under Rule 12(n)). Therefore, Ms. Cromley’s claim that the merger decision was made spontaneously after her telephone call to DCFS cannot support an assertion that the call to DCF'S was a substan- tial factor in the decision against reappointment. 6 The following facts set forth by the defendants were uncon- tested by Ms. Cromley in her Response to Defendants’ Statement of Uncontested Facts at R.101: 11.14 Cromley understood from discussions with Ward that the administration wanted to combine the English and Reading Departments so that students would not be able to go through four years of high school without taking an English course. [C Dep. 370-371] 11.15 This conversation about the possibility of combining ee [CRM Dep. 11.16 The Union President Fender had heard numerous peo- le talking about the merger of English and Reading and it been a possibility and a topic of discussion for many years at Lockport High School. [FND Dep. 111] R.95 at 65. 16 16 No. 93-1300 Moreover, even if the merger of the departments had occurred without earlier discussion with Ms. Cromley and even if we were to construe such thin circumstantial evi- dence to raise a triable issue as to whether the call to DCFS was a substantial factor in the decision not to reap- point Ms. Cromley, she could not avoid summary judg- ment on this basis. Ms. Cromley still would not have an- swered the defendants’ contention that the ization would have occurred even absent her call to DCFS. As the district court concluded, it was clear that the super- intendent, knowing of the broader conflict between Ms. Cromley and Meints, would not have let her remain in a su isory role over him, even if she had not called DCFS. With respect to the Chapter I Coordinator posi- rr. the district court noted that, —— this — id not require direct supervision over Meints, it did re- quire that the incumbent work well with the school ad- ministration. The district court stated that, by the time this position was filled, Ms. Cromley’s working relation- ship with school officials had deteriorated substantially for reasons that did not hinge on the call to DCF. This anal- ysis is entirely consistent with the Connick Court’s posi- tion that, “{wJhen close working relationships are essen- tial to ing public responsibilities, a wide degree of deference to employer’s judgment is appropriate.” Connick, 461 U.S. at 151-52. Because Ms. Cromley did not present evidence, direct Sor nat resppelaiing ber, veretall of tie auaniaty. oka. or not reappointing her, rev judg- ment is not warranted. Ms. Cromley met her initial bur- den by alleging that she had exercised her con- stitutional right of speech, and that the School Board had retaliated. However, we agree with the district court’s conclusion that no reasonable jury could find that Ms. Cromley has met her burden of establishing that her com- plaint to DCFS was a substantial factor in the decision to merge the two departments. Nor, assuming arguendo that she did meet her burden of demonstrating that the call was a substantial factor, did she show that the deci- sion against reappointment would have been any different. 17 No. 93-1300 17 She could not ignore the defendants’ assertions in their Statement of Uncontested Facts that her protected speech was not a substantial factor in the decision and that, even if that speech had been such a factor, the decision of the defendants would have been the same. Ms. Cromley has failed to contest the substantial accuracy of those conten- tions; therefore, summary judgment was appropriate.’ Conclusion We conclude that the district court did not err in denying Ms. Cromley’s motion for disqualification of defendants’ attorneys. We also hold that the district court properly granted summary judgment to the defendants. According- iy, the judgment of the district court is affirmed. AFFIRMED. A true Copy: Teste: Clerk of the United States Court of Appeals for the Seventh Circuit USCA AOTXXXC-92-001—Midwest Law Printing Co., Inc., Chicago—33-94 — F IN THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT No. 93-1300 MARCIA ANN CROMLEY, Plaintiff-Appellant, V. BOARD OF EDUCATION OF LOCKPORT TOWNSHIP HIGH SCHOOL DISTRICT 205, DONALD E. WEBER, RICHARD J. DITTLE, AND DONALD MEINTS, Defendants-Appellees. Appeal from the United States District Court for the Northern District of Dlinois No. 87 C 9767—James B. Moran, Chief Judge. [September 9, 1993] HON. THOMAS E. FAIRCHILD, Circuit Judge HON. JOHN L. COFFEY, Circuit Judge HON. KENNETH F. RIPPLE, Circuit Judge JUDGMENT — WITH ORAL ARGUMENT The judgment of the District Court is AFFIRMED, with costs, in accordance with the decision of this court entered on this date. - 19 - be eee IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION MARCELLA ANN CROMLEY, Plaintiff, No. 91 C 2686 v. BOARD OF EDUCATION OF LOCKPORT TOWNSHIP HIGH SCHOOL DISTRICT 205, DONALD E. WEBER, RICHARD J. DITTLE, AND DONALD MEINTS, Defendants. MEMORANDUM OPINION AND ORDER Defendants request that this court, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, grant their motion to dismiss plaintiff's complaint. In such circumstances any inference drawn must be favorable to the plaintiff, United Milk Products Co. v. Michigan Avenue National Bank of Chicago, 401 F.2d 14, 17 (7th Cir. 1968), and the allegations contained in the complaint are to be accepted as true. National Van Lines, Inc. v. United States, 326 F.2d 362, 372 (7th Cir. 1964); 5 Wright, Miller & Cooper, Federal Practice and Procedure §1363 at 656 (1969). FACTS Viewing the complaint in the light most favorable to the plainuff, the facts underlying this dispute appear as follows: Plaintiff Marcella Ann Cromley (‘‘Cromley’’) was employed as a reading instructor by the Board of Education of Lockport Township High School District 205, Will County, Illinois (the ‘“Board’’) from the 1974-75 school year up to and including the 1977-78 academic year, at the District's Central Campus. For the 1978-79 school year the Board selected Cromley to be the Reading Department Chairperson/Chapter 1 Director upon the recommendation of defendant Donald Weber (‘‘Weber’’), then principal of the East Campus and now superintendent of District 205. Cromley had been reappointed to this position every year through the 1986-87 school year. - 20 - In December 1986 two female students informed Cromley that defendant Donald Meints (‘‘Meints’’), a reading teacher employed by the Board at the East Campus, had kissed them and another female student. They also described how Meints on several occa- sions had rubbed their necks and shoulders in a way that offended them and that he had also made sexually-offensive comments. Cromley considered each of these described incidents unprofes- sional and sexual harassment. Later that month, Cromley informed the principal of East Campus, defendant Richard J. Dittle (‘‘Dit- tle’’), of the students’ complaints. Dittle had the school social worker interview the complaining students, after which he person- ally interviewed them. The social worker told Dittle that the girls had in fact complained about Meints, and the social worker added that she too had heard complaints from students that Meints rubbed their shoulders in a way they thought sexual and offensive. Dittle confirmed to Cromiey that the students had reiterated their com- plaints to him and added that they told him of Meints’ kissing them as he slid his hand down their buttocks. Dittle discussed the matter with Meints without informing the Nlinois Department of Children and Family Services (*‘DCFS’’) of the students’ complaints or describing the discussion. Dittle also failed to place a report in Meints’ personal file. On February 12, 1987, Cromley called the DCFS herself. She reported the facts concerning the allegations of the two students and gave her name. Five days later DCFS representatives came to District 205 to inves- tigate Cromiey’s complaint but Dittle refused to allow Cromley to speak with them. On March 4, 1987, Cromley noted the students’ allegations in her yearly performance evaluation of Meints executed pursuant to her duties as Reading department chairperson. Méeints rebutted Cromley’s evaluation in writing (‘the rebuttal*‘) and at a meeting on March 16, 1987, distributed it to Dittle, the American Federa- tion of Teachers’’ (*‘AFT’’) president, an AFT grievance commit- tee member, Meints, and Cromley. Around the time of the meeting Meints showed additional representatives of the AFT his rebuttal and informed other teachers of its contents. The rebuttal claimed that Cromley’s evaluation was a ‘‘malicious, vindictive, vengeful attempt to discredit me both as a person and as an educator,’’ that it was “‘nfe with innuendos, insinuations, fabrications, and half- truths,’’ and that ‘‘Cromley’s remarks which, based on hearsay, were taken out of context, contorted, and made ‘dirty’ by a mind which is consumed with and obsessed with finding all references to women as sexually motivated’’ (cplt. 15). The rebuttal also stated that, ‘‘perhaps I should sympathize with a person who looks at everything in such a jaded, contorted, twisted manner.’’ /d Meints also told other teachers that Cromley had made an anonymous tele- phone call reporting him to the DCFS. Subsequent to Cromley’s telling Dittle that she intended to seek legal advice with respect to the statements being circulated about her, Dittle met with Weber on March 27, 1987. Although Cromley had been previously told that she would be maintained in her current positions, Dittle informed her that, beginning with the 1987-88 school year, the Reading department was being merged into the English Department and, as a result, the position of Read- ing Department chairperson was being eliminated. Cromley’s yearly evaluations from 1982-83 through 1985-86 described her work as ‘‘exemplary,’’ ‘‘excellent,’’ ‘‘effective,”’ ‘‘very good job,’’ ‘‘on top of her field,’’ and recommended her for reappointment for each subsequent year (cplt. 19). Cromley’s 1986-87 evaluation noted problems with personnel in the Reading Department but contained no remarks with respect to reappoint- ment. In Apri] 1987 Cromley applied for the position of Gified Coor- dinator and Chapter 1 Coordinator, in response to the posted notice of the opening. On May 1 she was told that the position was awarded to Steven Midlock, an individual whom Cromley alleges ‘‘was mot as qualified for the position’’ as herself (cplt. 122). Weber recommended Midlock to the Board for the position of Chapter 1 coordinator, but the appointment failed because of a tie vote. Thus, on May 21 the position was reposted, and Cromley and Midlock both reapplied. The same day on which Cromley reapplied, May 26, she asked Weber for a written account for the reasons why she was not reap- pointed as Chapter 1 Director for the 1987-88 academic year. Weber responded the next day with a writing which included, among other comments, that ‘‘[a]t no time were your qualifications for this position viewed in a negative fashion; as a matter of fact, e 22 « quite to the contrary, your past commitment to this program and completion of the tasks at hand have been thorough and supported by Chapter 1 review team evaluations’’ (cplt. 28). During the summer of 1987 Midlock accepted employment in another school district. Other than Cromley, Midlock was the only applicant for the Chapter 1 Coordinator position. In early July the Board posted the position of English Department Chairperson, without meantion- ing the Chapter 1 Coordinator vacancy. Cromley wrote a ‘“‘Response to March 16, 1987, response’’) dated July 15, 1987. Cromley attached exhibits and requested that the administration place a copy in Meints’ personnel file. Dittle refused this request. On July 15, 1987, notice was posted for the position of Associ- ate English Department Chairperson. Cromley subsequently filed an application for the position in which she argued that the respon- sibilities of the Chapter 1 Coordinator would blend well with those of the Associate English Department Chairperson. Though Crom- ley was the only applicant from within District 205, she was notified on August 12 that another person was recommended for the associate chairperson position. On August 18 the Board, on Weber’s recommendation, hired Carol Garrett as an English teacher an appointed her Associate English Department Chairperson. Gar- rett was previously not a teacher in District 205 and Cromley alleges that ‘‘Garrett was not as qualified as herself (cplt. 40). A special meeting of the Board, held on July 25, appointed Sandra Martin English Department chairperson and Chapter 1 Coordinator. Cromley contends that Martin ’’was not as qualified for the Chapter 1 position‘ as herself (cplt. 37) and also that Mar- tin has not timely applied for the position pursuant to the May 1987 posting. Cromley brought suit alleging, inter alia, that Weber, Dittle, and the Board of Education knew or reasonably should have known that their actions and conduct in (1) eliminating the Reading Department; and/or (2) not reappointing Cromley to the Chapter 1 Director position; and/or (3) not recommending Cromley for the then vacant Chapter 1 Director position; and/or (4) not recommend- ing Cromley for the Associate English Department Chairperson position, violated Cromley’s First and Fourteenth Amendment BP eNO A mere a ill as ONES Ta No ON ce Tae « dacs uate tna, a EL ett bt R GING OTS . freedoms. Plaintiff alleges causes an action pursuant to 42 U.S.C. §1983 against the Board, against Weber and Dittle individually and in their respective official capacities, and against Meints. She also alleges that Weber and Dittle conspired together to bring about these same ends. Cromley submits pendent state claims for defa- mation, retaliatory action, intentional interference with contractual relations and intentional infliction of emotional distress. DISCUSSION |. Section 1983 Claims Plaintiff's counts I through III state claims under the First and Fourteenth Amendments to the U.S. Constitution and thereby under 42 U.S.C. $1983. Section 1983 prohibits persons acting under color of state law from depriving any person of any rights, privileges or immunities secured by the Constitution or federal law. Thus plaintiff must have pled both that there were the requisite actions under color of state law and that she was thereby denied a protected right. Plaintiff apparently seeks damages in count I from th Board/County; in counts [I] and [II] she alleges the liability of par- ticular individuals (the former concerning Dittle, the latter, Weber);' and in count IV the conspiracy charge is detailed. A. Deprivation of a Protected Right — Cromiey’s Speech To state her claim under §1983 plaintiff must allege that defen- dants retaliated against her on the basis of protected speech. That public employees do not relinquish their First Amendment rights as a condition of employment is beyond dispute. Equally clear is that 1. Defendants are correct that “fa]s to Count 1, Plainuffs allegations are vague and confusing** (def. mem. at 2). The problem is that count I includes each and every background fact of concern. Both this court and defendants have had to ascertain count I[’s scope via the context surrounding counts II and Ill. o in order to create an environment conductive to educating students, certain restrictions on the speech of public school teachers are necessary. What is therefore required is *’a balance between the interests of the teacher, as a citizen, in commenting upon matters of public concern, and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.*‘ Pickering v. Board of Education, 391 U.S. 563, 568 (1968). The fear that post-hoc judicial evaluation might effec- tively prevent school boards from acting on internal matters wholly irrelevant to speech led the Supreme Court in Mt Healthy\fICity Board of Education v. Doyle, 429 U.S. 274 (1977), to create a test which protects both teachers and school boards. Mt. Healthy holds that the plaintiff-teacher must demonstrate that his or her conduct was protected by both the First and Fourteenth Amendments, and also that such conduct played a substantial part in the decision not to rehire. Jd at 285-86. Once that demonstration is made the bur- den shifts to the board to demonstrate by a preponderance of the evidence that it would have reached the same decision even in the absence of the “protected conduct.** /d at 285-87. We employ the same test here where the plainuff alleges not that she was fired but rather that she was victimized by other forms of retaliation. The first Amendment protects speech that addresses issues of “public concern,*‘ as opposed to matters of (1982). Protected speech includes employee expression which can *’be fairly con- sidered as relating to any matter of political, social, or other con- cern to the community.** /d at 146. Plaintiff here alleged sufficient facts to bring her speech within the ambit of First Amendment protection. Cromley informed Dittle about student complaints, reported them to the DCFS.* and 2. Whether the Abused and Neglected Child Reporting Act (°ANCRA‘*), ch. 23, §2051 et seg. then compelled reporting to the DCFS is irrelevant to whether or not Cromley’s speech is constituuonally protected. To suggest otherwise would place the legislature, who decides when reporting is legally required, in control of the First Amendment’s scope. ABS Zhe ett hes a ¥ x 2 4 2 reiterated them in her yearly performance evaluation of Meints.* Allegations that Meints had taken sexual liberties with his students are of obvious concern to the community of Lockport. See, e.g., Kufalk v. Hart, 610 F.Supp. 1178, 1183 (N.D. Ill. 1985) > Defendants. MEMORANDUM OPINION AND ORDER Plainuff's prior attorney has accepted a partnership with defendant’s attorneys. Plaintiff wants to disqualify defendant’s . attommeys, and we deny the motion. There can be no dispute about there being a substantial relationship, that the attorney in fact obtained confidences in his prior firm and that there is a presumption he will share those confidences with his new partners. The Only issue is whether the barriers erected between the attorney and his new law firm with respect to this case are sufficient to rebut the presumption of shared confidences. We believe that appropriate isolation will rebut the presumption not only in governmental transfers but in private transfers as well, and we believe the barriers to be appropniate here. DATED: March 19, 1990 ENTER: /s/ James B. Moran Judge, United States District Judge - 5). IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION MARCELLA ANN CROMLEY, Plaintiff, No. 91 C 2686 v. BOARD OF EDUCATION OF LOCKPORT TOWNSHIP HIGH SCHOOL DISTRICT 205, DONALD E. WEBER, RICHARD J. DITTLE, AND DONALD MEINTS, Defendants. MEMORANDUM OPINION AND ORDER The basis dispute in this case is described in an earlier opinion, Cromley v. Board of Education of Lockport Township High School District 205, 699 F. Supp. 1283 (N.D. Ill. 1988). We there denied, in certain respects, a motion to dismiss. Now the motion is defendants’ motion for summary judgment, and that we grant. The facts we recite are not much different from those set forth in the earlier opinion. Although the parties do not dispute the Objective facts, they do, however, have sharply differing perceptions of what those facts mean. Moreover, the substantial discovery since the earlier opinion has provided considerable content to the nature of the dispute. What is involved is not a lot in the economic sense. A teacher, who continues to be a teacher, was not reappointed to an unpaid position as Chapter I Coordinator or Director. She also lost her position as Chairperson of the Reading department, a position that paid her approximately $1400 additional compensation each year. Both positions also provided some release time from normal teaching responsibilities. The dispute has triggered a major legal confrontation. The lawyering has been both competent and considerable -- the earlier opinion was 18 pages, the discovery thereafter was extensive, and the motion papers now before the court include approximately 100 pages devoted to separating out the contested and uncontested facts, and almost 100 pages of briefs. Rane bene oneal nee ka Aart 6 a xe We start off with the question of whether or not a trier of fact could reasonably conclude that plaintiff's professional career was blighted from 1987 on because she exercised her First Amendment rights. We think the best way to answer that question is by a chro- nological account of what happened. Plaintiff has been a teacher in the system since 1974. From 1978 to 1987 she was Reading Department chairperson and Chapter I Coordinator, both supervisory or quasi-administrative positions. Her evaluations were always exemplary, at least up to the time involved here. Defendant Donald Meints has been a teacher in the system for over 30 years, and at least for a period of many years was also a teacher in the reading Department. Plain- uff, from 1978 on, was his supervisor and, as such, evaluated his performance. The relationship between plaintiff and Meints had, over the years, occasionally been troubled. On occasion their differences had led to union intercession to resolve matters, and Meints had several times accused plaintiff of trying to harm him professionally. In 1986 and 1987 defendant Donald E. Weber was superinten- dent at District 205, defendant Richard J. Dittle was principal of the high school, defendant Chris Ward was an assistant superinten- dent at the high school, and Ronald Smith was the other assistant superintendent. The period was marked by turmoil and conflict between the administration and the Board, and within the Board. There was also, in plaintiff's view, some friction in the last half of 1986 between herself and Dittle, and herself and Weber, in that she believed Dittle had harassed her about a couple of matters and Weber had threatened not to renew her Chapter i Coordinator posi- tion because of differences between them respecting the relocation of the Chapter I office. On December 10, 1986, plaintiff advised Dittle that two female students had reported that Meints had kissed them and another female student, that on several occasions he had rubbed their necks and shoulders in a way that had offended them, and that he had on several Occasions made sexually offensive comments. There was, apparently, also a reference to his hand being on one student’s but- tocks. (Plaintiff reported another incident also, but that report was much later, well after the critical events here.) Dittle had a female