Gloria Fields v. Board of Education of the City ( 2019 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 17‐3136
GLORIA D. FIELDS,
Plaintiff‐Appellant,
v.
THE BOARD OF EDUCATION OF THE CITY OF CHICAGO & CHAD P.
WEIDEN,
Defendants‐Appellees.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 15 C 4581 — Rebecca R. Pallmeyer, Judge.
____________________
ARGUED JUNE 12, 2019 — DECIDED JUNE 27, 2019
____________________
Before WOOD, Chief Judge, and BARRETT and ST. EVE, Circuit
Judges.
PER CURIAM. Gloria Fields, a 63‐year‐old African‐Ameri‐
can woman, retired in 2016 from her job as a teacher with Chi‐
cago Public Schools. She sued the Board of Education and the
principal of the school where she worked, alleging that they
discriminated against her because of her race and age and re‐
taliated against her for filing this lawsuit, in violation of 42
2 No. 17‐3136
U.S.C. § 1981 and the Age Discrimination in Employment Act,
29 U.S.C. §§ 621–34. The district court entered summary judg‐
ment for the defendants on all Fields’s claims, concluding that
Fields did not suffer an adverse employment action. We
agree.
I. Background
Fields was a teacher at Edgebrook Elementary School from
2002 until May 2016, when she retired. Chad Weiden became
the principal of Edgebrook in July 2013, and he required all
teachers to submit weekly lesson plans to him. Weiden pro‐
vided feedback on teachers’ plans during the 2014–15 school
year, and he informed Fields that her lesson plans were too
scripted and too long.
Weiden also conducted informal observations of teachers,
including Fields. He observed often that Fields’s teaching was
disconnected from her lesson plans and that students were
not engaged with the material. Weiden suggested ways for
her to improve, but Fields incorporated his suggestions spo‐
radically and refused later offers to assist with her lessons.
Based partly on Weiden’s observations, Chicago Public
Schools rated Fields’s job performance for the 2013–14 and
2014–15 school years as “developing,” which ranks below a
“proficient” rating.
Beginning in 2014, Weiden responded to several incidents
by issuing Fields “pre‐meeting notices” informing her that
she had to attend a meeting to develop a performance im‐
provement plan. First, Fields did not attend an evening “open
house” in February 2014—despite working at the school that
day—that she acknowledges Weiden would have wanted her
to attend. She also did not inform the school’s administration
No. 17‐3136 3
that she would not attend. Next, without notifying Weiden,
Fields did not attend a mandatory “professional development
session” in November 2014. Then, in 2015, Fields did not sub‐
mit request forms for a field trip on time and completed the
forms only after several requests from Weiden. Fourth, Fields
did not attend a “principal‐directed preparation period” in
September 2015. Fields also received notices for failing to turn
in lesson plans and failing to properly notify the school about
requested leave. The notices stated that Fields could receive a
“formal warning” or a “final warning” after the meetings, or
that Weiden could recommend her dismissal to the Board.
When Fields accrued three performance improvement
plans, she faced possible disciplinary action. The teachers’ un‐
ion and the Board agreed to mediate the dispute with Fields
in January 2016, and both Weiden and Fields attended. The
Board’s opening position was that Fields could retire with a
“do not hire” designation, preventing her from being rehired.
The mediator, however, asked Weiden if he objected to
Fields’s performance‐improvement plans being downgraded.
Weiden did not object because he wanted Fields to improve
her performance, so Fields received no discipline as a result
of the performance‐improvement plans.
After the mediation, Fields took a leave of absence under
the Family and Medical Leave Act. She retired in May 2016
without ever returning to work.
Fields then sued Weiden and the Board of Education for
discriminating against her based on her race and age; she later
added a retaliation claim for filing this lawsuit. (She also sued
Weiden for intentional infliction of emotional distress, but she
abandons that claim on appeal so we do not address it.) The
district judge entered summary judgment for the defendants,
4 No. 17‐3136
reasoning that Fields’s discrimination claims failed because
she could not show that she suffered an adverse employment
action. The court added that Fields had “little to suggest that
considerations beyond individuals’ job performance entered
into the Defendants’ calculations, and even less to suggest
that Weiden’s nondiscriminatory explanations for his behav‐
ior was ‘mere pretext.’” And the defendants were entitled to
judgment on Fields’s retaliation claim, the court said, because
she did not prove that she had suffered a materially adverse
employment action. Fields was not constructively discharged,
the court reiterated, and the possibility of discipline or termi‐
nation following the pre‐meeting notices was not serious
enough to dissuade a reasonable employee from engaging in
protected activity.
II. Analysis
We review the district court’s entry of summary judgment
de novo, construing all facts and drawing all reasonable infer‐
ences in favor of Fields, the opponent of summary judgment.
See Abrego v. Wilkie, 907 F.3d 1004, 1011 (7th Cir. 2018). On ap‐
peal, Fields argues that she presented enough evidence to get
past summary judgment on her discrimination and retaliation
claims. On the discrimination claims, she argues that she suf‐
fered an adverse employment action because she was con‐
structively discharged and because the Board tried to have
her fired at the mediation. On the retaliation claims, Fields
adds that she suffered an adverse action because Weiden is‐
sued her multiple pre‐meeting notices after she filed this suit.
She also points to the mediation in January 2016 as a possible
adverse action.
No. 17‐3136 5
A. Discrimination Claims
We examine all the evidence when reviewing employment
discrimination claims to determine whether the defendants’
adverse employment actions were motivated by a proscribed
factor such as race or age. See Ortiz v. Werner Enters., Inc.,
834 F.3d 760, 765 (7th Cir. 2016). The framework established
by McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), has
not been “displaced,” see Ferrill v. Oak Creek‐Franklin Joint Sch.
Dist., 860 F.3d 494, 499‐500 (7th Cir. 2017), and we follow the
district court and the parties in using it. Thus, Fields had to
present evidence that (1) she is a member of a protected class,
(2) she was meeting the Board’s legitimate expectations, (3)
she suffered an adverse employment action, and (4) similarly
situated employees outside of her protected class were treated
more favorably. See Oliver v. Joint Logistics Managers, Inc., 893
F.3d 408, 412 (7th Cir. 2018) (race discrimination); Carson v.
Lake Cty., Ind., 865 F.3d 526, 533 (7th Cir. 2017) (age discrimi‐
nation). We apply the same standard to discrimination claims
under § 1981, Title VII, and the Age Discrimination in Em‐
ployment Act. See Lane v. Riverview Hosp., 835 F.3d 691, 695
(7th Cir. 2016) (Title VII and § 1981); Simpson v. Franciscan All.,
Inc., 827 F.3d 656, 661 (7th Cir. 2016) (noting framework ap‐
plies to “claims of both age and race discrimination”).
The Board contends that Fields’s discrimination claims fail
because she did not suffer an adverse employment action, but
Fields maintains that she was constructively discharged. We
have recognized two types of constructive discharge. The first
occurs when a plaintiff resigns due to discriminatory “work‐
ing conditions even more egregious than that required for a
hostile work environment claim.” Wright v. Ill. Dep’t of Chil‐
dren and Family Servs., 798 F.3d 513, 527 (7th Cir. 2015). The
6 No. 17‐3136
second occurs when an employer acts in a manner that would
make clear to a reasonable employee that she will be immedi‐
ately fired if she does not resign. Id.; Chapin v. Fort‐Rohr Mo‐
tors, Inc., 621 F.3d 673, 679–80 (7th Cir. 2010).
Fields cannot show that she was constructively dis‐
charged. She has no evidence that she was subjected to a
threat of violence or other conditions that are more severe
than those required to establish a hostile work environment.
See Wright, 798 F.3d at 527; Chapin, 621 F.3d at 679 (raised
voices and one threat insufficient). She also has no evidence
that her working conditions were objectively intolerable. She
asserted at oral argument that her situation is similar to the
one we saw in Equal Emp’t Opportunity Commission v. Costco
Wholesale Corp., 903 F.3d 618, 621–24, 628–29 (7th Cir. 2018),
but in that case a Costco employee was stalked by a customer
for at least 13 months, and the harassment was so severe that
the employee secured a “No Contact Order” from the state
courts. Nothing of the kind happened here. And although
Fields argues that she felt compelled because of her doctors’
advice not to return to work following her leave of absence,
she has no evidence that a reasonable person would have felt
compelled to retire or quit. See Green v. Brennan, 136 S. Ct.
1769, 1776–77 (2016).
Further, Fields cannot point to any actions that would put
a reasonable employee on notice of her imminent firing. See
Wright, 798 F.3d at 527; Chapin, 621 F.3d at 679–80. Fields as‐
serts that the pre‐meeting notices and the mediation confirm
that the Board wanted to fire her. But initiating disciplinary
procedures does not necessarily mean that an employer is
preparing to fire an employee because the employer could, for
example, hope that criticism will lead to better performance
No. 17‐3136 7
by the employee. See Lloyd v. Swifty Transp., Inc., 552 F.3d 594,
602 (7th Cir. 2009); Oest v. Ill. Dep’t of Corr., 240 F.3d 605, 613
(7th Cir. 2001), overruled on other grounds by Ortiz, 834 F.3d at
765. And here, the mediation resulted in no punitive
measures, and Weiden provided sworn testimony that he did
not oppose Fields receiving no discipline because he wanted
her performance to improve. If anything, the outcome of the
mediation would lead a reasonable employee to conclude that
her job was secure. Fields therefore cannot show that, had she
not retired before returning from medical leave, the Board
would have fired her. See Chapin, 621 F.3d at 680.
Fields also suggests that the negative performance re‐
views and performance improvement plans constitute ad‐
verse employment actions. She is incorrect. See Boss v. Castro,
816 F.3d 910, 917–18 (7th Cir. 2016) (performance improve‐
ment plan); Langenbach v. Wal‐Mart Stores, Inc., 761 F.3d 792,
799 (7th Cir. 2014) (negative review and performance im‐
provement plan in FMLA retaliation context).
B. Retaliation Claim
Fields’s retaliation claim fares no better. To survive sum‐
mary judgment Fields needed evidence that would permit a
reasonable factfinder to conclude that her engagement in pro‐
tected activity caused a materially adverse employment ac‐
tion. See Madlock v. WEC Energy Group, Inc., 885 F.3d 465, 472
(7th Cir. 2018); Lauth v. Covance, Inc., 863 F.3d 708, 716 (7th Cir.
2017). Once again, Fields cannot establish that she suffered an
adverse employment action after filing this lawsuit, let alone
one taken with the intent to retaliate. As we described above,
the record does not permit the inference that she was con‐
structively discharged. And she did not experience anything
else that rises to the level of a materially adverse employment
8 No. 17‐3136
action. The pre‐meeting notices, which warned that discipline
was possible, and the mediation, which resulted in no disci‐
pline, did not affect Fields’s career prospects or salary. See
Poullard v. McDonald, 829 F.3d 844, 856 (7th Cir. 2016). And
the performance improvement plans, even though they had
the potential to lead to termination or other discipline, are not
enough. See Davis v. Time Warner Cable of Se. Wis., L.P., 651 F.3d
664, 677 (7th Cir. 2011).
Without evidence that she suffered an adverse action,
Fields’s discrimination and retaliation claims must fail. The
judgment of the district court, therefore, is AFFIRMED.