United States District Court, N.D. Illinois
May 17, 2004.
KATHLEEN LIFTON, Plaintiff,
THE BOARD OF EDUCATION OF THE CITY OF CHICAGO, ARNE DUNCAN, in his individual capacity, and WILLIAM MEUER, in his individual capacity, Defendants
The opinion of the court was delivered by: ELAINE E. BUCKLO, District Judge
MEMORANDUM OPINION AND ORDER
Plaintiff Kathleen Lifton was employed as a kindergarten teacher by
the Chicago Public Schools from August 1988 until January 31, 2003.
Defendant William Meuer was the principal of Norwood Park School
("Norwood"), where Ms. Lifton was employed, and defendant Arne Duncan was
the Chief Executive Officer of defendant the Board of Education for the
City of Chicago ("the Board"). Ms. Lifton alleges that the Board, Mr.
Duncan, and Mr. Meuer violated her First Amendment rights by retaliating
against her for speaking out on issues of public concern (Counts I and
II). Ms. Lifton alleges that the defendants violated her procedural due
process rights under the Fourteenth Amendment by disciplining her without
sufficient process (Count III). Finally, Ms. Lifton alleges state law
claims of defamation and intentional infliction of emotional distress (Counts V and VI).*fn1 The defendants move for summary
judgment on all counts. The motion is GRANTED for the reasons stated
Summary judgment is appropriate where the record and affidavits, if
any, show that there is no genuine issue of material fact and that the
moving party is entitled to judgment as a matter of law. Lexington Ins.
Co, v. Rugg & Knopp, 165 F.3d 1087, 1090 (7th Cir. 1999); FED. R. Civ.
P. 56(c). I must construe all facts in the light most favorable to the
non-moving party and draw all reasonable and justifiable inferences in
favor of that party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255
Counts I and II of Ms. Lifton's complaint allege that the defendants
took retaliatory action against her for statements protected by the First
Amendment. Specifically, Ms. Lifton claims that Mr. Meuer wrongfully
charged her with violations of the Employee Discipline Code and the Board
and Mr. Duncan issued a Warning Resolution to her. To sustain a claim
based on violation of her First Amendment rights, Ms. Lifton must
establish that (1) her conduct was constitutionally protected and (2) her
protected conduct was a substantial or motivating factor for the
defendants' challenged actions. Vukadinovich v. Bd. of Sch. Trs. of N. Newton Sch.
Corp., 278 F.3d 693, 699 (7th Cir. 2002). If Ms. Lifton can establish
both elements, the defendants then bear the burden of establishing that
they would have taken their actions regardless of her protected conduct.
Id. If the defendants successfully meet their burden, Ms. Lifton must
show that the defendants' stated reasons for their actions are
pretextual; that is, "that a rational finder of fact could infer that the
defendants' stated reasons [for their actions] were lies." Id.
In the spring and summer of 2002, Ms. Lifton expressed various opinions
about school issues, which included objecting to early renewal of Mr.
Meuer's principal's contract and criticizing the current kindergarten
program. Ms. Lifton's speech was constitutionally protected as addressing
matters of public concern, meeting the first prong of her prima facie
claim. Lifton v. Bd. of Educ. of the City of Chicago, 290 F. Supp.2d 940,
943-44 (N.D. Ill. 2003).
The second prong of the prima facie case, that her speech was a factor
in the action taken against her, and the question of pretext are
intertwined. Defendants state that a Warning Resolution was issued to
Ms. Lifton because of insubordination consisting of several infractions,
including failing to issue grades to her students at the end of the
2001-2002 school year, failing to complete her assigned end of the year
tasks, and repeatedly sending unauthorized letters to the parents of her students.
Insubordination has "consistently been held to be a sufficient
justification for an adverse employment action," Vukadinovich, 278 F.3d
Ms. Lifton presents no evidence that she was disciplined because of her
speech or that the defendants' stated reason is pretextual. She argues
that Warning Resolutions are only given for much more serious infractions
than hers. This argument ignores the record of Warning Resolutions given
for failure to submit lesson plans, failure to submit grades, and sending
unauthorized letters to parents the very infractions for which Ms.
Lifton was disciplined. Ms. Lifton also argues that other teachers
committed the same infractions without discipline, but is unable to
provide any evidence other than her own testimony. Ms. Lifton argues that
she should have been counseled prior to the issuance of the Warning
Resolution, that the Board should have utilized progressive discipline,
and that her infractions should not have been dealt with through the
disciplinary procedures all arguments which run counter to the
personnel policies provided by Ms. Lifton. Ms. Lifton finally relies on
the temporal closeness of her speech, starting in Spring 2002, and the
issuance of the Warning Resolution in August 2002. However, temporal
closeness alone is not sufficient to create a triable issue as to the
motivation behind an action. Stone v. City of Indianapolis Pub. Utils.
Div., 281 F.3d 640, 644 (7th Cir. 2002). The motion for summary judgment is
GRANTED as to Counts I and II.
Count III claims that Ms. Lifton was deprived of her property interest
in her position as a kindergarten teacher without due process. Ms.
Lifton's position as a tenured teacher was a protectable property
interest. Townsend v. Vallas, 256 F.3d 661," 673 (7th Cir. 2001). Ms.
Lifton alleges that she did not receive due process before the issuance
of the Warning Resolution.*fn2 She points me to no law or Board rule
mandating any process at all before the issuance of a Warning
Resolution. Such a warning is itself part of the process before an
employee is subjected to discipline, such as suspension or termination.
Ms. Lifton also argues that her due process rights were violated when
she was constructively discharged. Most of the acts alleged by Ms. Lifton
to support her claim of constructive discharge are not supported by any
evidence. She also complains of "excessive monitoring," which she admits
involved observing her one time on parents' night and during students'
lunch period one other time. She complains that the school hired a
teacher to replace her but the teacher was a math resource teacher. She
complains that Mr. Meuer asked for doctor's notes and lesson plans but this was
after she had called in sick nine days in a row. The remainder of her
allegations are similarly deficient. They do not amount to a constructive
discharge. I GRANT the motion for summary judgment on Count III.
Count V alleges that defendants made defamatory statements about Ms.
Lifton. To establish defamation, Ms. Lifton must show a false statement
by the defendants, an unprivileged publication of that statement, and
resulting damages. Haywood v. Lucent Tech., Inc., 323 F.3d 524, 533 (7th
Cir. 2003). Statements of opinion are not actionable as defamation. Boese
v. Paramount Pictures Corp., 952 F. Supp. 550, 555 (N.D. Ill. 1996). A
statement is opinion when it is clearly an expression of a subjective
view, rather than a claim by the speaker of objectively verifiable
facts. See, e.g., Haynes v, Alfred A. Knopf, Inc., 8 F.3d 1222, 1227 (7th
The determination of whether a statement is a fact or an opinion is a
matter of law. Haywood v. Lucent Technologies, Inc., 169 F. Supp.2d 890,
915 (N.D. Ill. 2001). I must determine
(1) whether the statement has a precise core of
meaning for which a consensus of understanding
exists, or conversely, whether the statement is
indefinite and ambiguous; (2) whether the statement is
verifiable; i.e., capable of being objectively
characterized as true or false; (3) whether the
literary context of the statement would influence the
average reader's readiness to infer that a particular
statement has factual content; and (4) whether the
broader social context or setting in which the
statement appears signals a usage as either fact or
opinion. Boase, 952 F. Supp. at 556 (citing Oilman v. Evans, 750 F.2d 970, 979
(D.C. Cir 1984), cert. denied, 471 U.S. 1127 (1985)).
Ms. Lifton alleges that Mr. Meuer said that she was "lazy," "burnt
out," "resting on her laurels," "unstable," and "looking for sympathy,"
and that she "doesn't want to work" and "wants to go home at 2." These
statements are opinion, and therefore not actionable. Some of the terms,
such as "lazy," may or may not have a clear consensus of meaning.
However, the statements alleged are vague expressions of Mr. Meuer's
sentiments, not statements of verifiable fact. Compare, e.g., Haywood,
169 F. Supp.2d at 915 (statement that plaintiff was "unstable" is an
opinion); Quinn v. Jewel Food Stores, 276 Ill. App.3d 861, 866-867
(Ill.App. Ct. 1995) (use of terms "`cocky,' `con artist' and `bullshit'"
are "characterizations and opinions" rather than verifiable facts). The
statements were allegedly made to Eileen Ladin, the assistant principal
at Norwood, further suggesting that Mr. Meuer was expressing an opinion,
not stating a fact. As Ms. Lifton identifies no other allegedly
defamatory statements, I GRANT the motion for summary judgment with
respect to Count V.
Finally, Count VI claims that the Board and Mr. Meuer intentionally
inflicted emotional distress on Ms. Lifton. To sustain a claim for
intentional infliction of emotional distress, Ms. Lifton must show that
the conduct complained of was extreme and outrageous; that the defendants either intended to inflict severe
emotional distress or knew there was a possibility of causing such
distress; and that the conduct in fact caused severe emotional distress.
Welsh v. Commonwealth Edison Co., 306 Ill. App.3d 148, 154 (Ill.App. Ct.
1999). The defendants' conduct must be such that the "recitation of facts
to an average member of the community would arouse his resentment against
the actor, and lead him to exclaim `Outrageous!'" Van Stan. v. Fancy
Colours & Co., 125 F.3d 563, 567 (7th Cir. 1997). Ms. Lifton alleges
that the defendants issued her a Warning Resolution; broadcast the Board
meeting where the resolution was issued on television and the Internet;
threatened her with discharge if she sent additional unauthorized
letters; monitored her during parent-teacher conferences; asked her for
lesson plans while she was on extended sick leave; and hired a new
teacher for a substitute position that Ms. Lifton felt was to replace
her. These actions, even taken in sum, do not constitute the type of
egregious actions for which courts have found liability. See, e.g., Van
Stan, 125 F.3d at 568 (collecting cases). The motion for summary judgment
on Count VI is GRANTED.