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BROGAN v. CHICAGO SCHOOL REFORM BOARD OF TRUSTEES

May 21, 2003

THOMAS J. BROGAN, PLAINTIFF,
v.
CHICAGO SCHOOL REFORM BOARD OF TRUSTEES, ET AL., DEFENDANTS



The opinion of the court was delivered by: Milton I. Shadur, Senior District Judge

MEMORANDUM ORDER

Thomas Brogan has sued the Chicago School Reform Board of Trustees,*fn1 Nettelhorst Local School Council ("Council"), Susan Kurland ("Kurland") and Mary Pat Hartung ("Hartung") under 42 U.S.C. § 1983 ("Section 1983") for allegedly violating his First Amendment right to engage in speech on matters of public concern when defendants allegedly retaliated against him by subjecting him to adverse terms and conditions of employment, including harassing disciplinary measures and progressive discipline. All defendants have moved for summary judgment under Rule 56,*fn2 and initially imposed all of the disciplinary actions of which Brogan the parties have complied with this District Court's LR 56.1.*fn3 For the reasons stated in this memorandum opinion and order, all defendants' motions are granted and this action is dismissed in its entirety.

Summary Judgment Standards

Familiar Rule 56 principles impose on defendants, as movants, the burden of establishing the lack of a genuine issue of material fact (Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)). For that purpose this Court must "consider the evidentiary record in the light most favorable to the non-moving party . . . and draw all reasonable inferences in his favor" (Lesch v. Crown Cork & Seal Co., 282 F.3d 467, 471 (7th Cir. 2002)). And Pugh v. City of Attica, 259 F.3d 619, 625 (7th Cir. 2001) has echoed the teaching of Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986):

A genuine issue of triable fact exists only if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party."*fn4
As with any summary judgment motion, this Court accepts nonmovant Brogan's version of any disputed facts, so long as it is supported by record evidence. But because (as hereafter explained) this Court must examine the bona fides of the asserted justifications for the disciplines imposed on Brogan, and because Brogan's disputes on that score are better addressed after the disciplinary actions are described, the Background section that follows reflects defendants' perception of the situations.

Background

Beginning in 1997 Brogan was a teacher of the Chicago Public Schools primarily assigned to Louis B. Nettelhorst Elementary School ("Nettelhorst") (D. St. ¶ 1). During that time Nettlehorst Principal Kurland initiated discipline against Brogan on five separate occasions. All of those suspensions were upheld by the Board, though it sometimes reduced their duration. As for the Council, under the statutory educational structure it is a public entity with no authority, duty or responsibility for disciplining teachers (D. St. ¶ 4). Hartung was the Council's chairperson from 1999 to 2001 (D. St. ¶ 5).

Brogan says that before his resignation in June 2001 he consistently raised issues and concerns during public Council meetings and Nettlehorst faculty meetings (B. Mem. 3-4). Brogan points to his voicing of concerns over (1) Nettlehorst's grouping students by ability, (2) Nettelhorst's method of administering and utilizing some types of testing of its students and (3) problems in Nettelhorst's special education program (id.). Brogan also requested Council minutes and sought to videotape the public Council meetings (B. St. ¶¶ 188-99). as well as inquiring into Kurland's and the Council's management of Nettelhorst finances (B. St. ¶¶ 200-15). According to Brogan, Kurland's initiation of the disciplinary actions described next was in retaliation for his outspokenness (B. Mem. 1).

First Disciplinary Action*fn5

On September 25, 2000 Kurland recommended a five-day suspension for Brogan, based on numerous complaints that she had received from other staff members at Nettelhorst who complained of Brogan's abusive conduct towards them (K. Mem. 3). Kurland identifies six different incidents that were reported to her as leading to the first disciplinary action.

First, on September 15, 1999 staff member Haney complained that Brogan intimidated her when he confronted her on the school stairs and chastised her in front of numerous students (D. St. ¶ 30a). Brogan argues that Haney's complaint was inaccurate, but he acknowledges that he had a difficult time with Haney and that he expressed his frustration with her (B. Resp. St. ¶ 30a)

Shortly thereafter two other Nettelhorst staff members, Jones and Frank, complained that Brogan offended them when he scolded them over the microphone to be quiet (D. St. ¶ 30b). Brogan does not dispute the factual basis, but instead points to Kurland's failure to castigate him during a meeting about the morning reading program (B. Resp. St. ¶ 30b).

Nettelhorst Guidance Counselor Fitzpatrick complained of Brogan's behavior toward her when Brogan spoke with her about his disagreement over a student's individual educational plan (D. St. ¶ 30c). Brogan claims that he was unaware of Fitzpatrick's complaint and that he did not shout or yell at her (B. Resp. St. ¶ 30c)

All of those first three concerns were brought to teacher's union delegate Paulette Flanagan ("Flanagan"), who later brought them to Kurland's attention (D. St. ΒΆ 30d). Kurland relied on a November 23, 1999 memorandum that summarized the complaints (K. Mem. 5). Although Flanagan denied drafting the memorandum in the form shown at her deposition (B. Ex. P at 13-16), she acknowledged that she authored everything that appears in the memo except for one heading and a date (id. at 15, 16. 19, 24), and she also ...


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