Springer, Rollie v. Durflinger, Norman ( 2008 )

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