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September 27, 2004.

BOARD OF EDUCATION OF DISTRICT U-46, et al., Defendants.

The opinion of the court was delivered by: MARTIN ASHMAN, Magistrate Judge


Plaintiffs Debbie Andrekus and Deborah VanZuidam filed a five-count complaint against Defendants Board of Education District U-46, Marvin Edwards, Richard P. Majka, Maria Smith, Ron Kalicki, Robert Hain and Diane McFarlin. Counts III, IV, and V of Plaintiffs' Complaint were previously dismissed and Defendants now move this Court, pursuant to Rule 56 of the Federal Rules of Civil Procedure, to grant summary judgment and dismiss Plaintiff's Counts I and II. This case is properly before this Court as Count I of Plaintiffs' Complaint alleges a First Amendment violation under 42 U.S.C. § 1983, Count II alleges an Equal Protection violation under 42 U.S.C. § 1983, and both parties consent to have this Court conduct any and all proceedings in this case, including the entry of final judgment. See 28 U.S.C. § 636(c); Local R. 73.1(a).

  The Defendants complied with Local Rule 56.1 and submitted a Local Rule 56.1 Statement of Undisputed Material Facts ("L.R. 56.1 Statement") in support of their Motion for Summary Judgment. The Plaintiffs did not file a Local Rule 56.1 Statement of Undisputed Material Facts so the Court deems Defendants' entire L.R. 56.1 Statement to be admitted by the Plaintiffs. L.R. 56.1(b)(3)(B). See also Midwest Imports, Ltd. v. Coval, 71 F.3d 1311, 1316 (7th Cir. 1995) (opposing party cannot simply raise additional facts in its brief if those facts are not in its 56.1(b)(3)(B) statement).

  I. Background

  Plaintiffs Debbie Andrekus and Deborah VanZuidam, at the time of filing, were both certified, tenured teachers employed at Streamwood High School, in the Village of Streamwood, Cook County, Illinois by School District U-46. The District is organized and operated pursuant to the Illinois School Code and as such the Board of Education was charged with the duty of running the District pursuant to the Illinois School Code. On June 4, 2002, Plaintiffs filed their Complaint against Defendants; Marvin Edwards, Superintendent of the District, Richard Majka, Assistant Superintendent of the District, Maria Smith, Director of Special Education for District U-46, Ron Kalicki, Principal of Streamwood High School, Robert Hain, Special Education Supervisor for Streamwood High School, Diane McFarlin, Dean of Streamwood's Special Education Department, and the Board of Education.

  At all pertinent times, Andrekus was a special education teacher whose duties included classroom instruction for Behavior Disorder ("BD") students in a self-contained classroom and acting as a case manager for up to thirteen BD students. During the 2001-2002 school year, VanZuidam was assigned to teach Educable Mentally Handicapped (EMH) students in a self-contained classroom and served as a case manager for up to fifteen EMH students. At all pertinent times, Andrekus and VanZuidam were represented for purposes of collective bargaining by the Elgin Teachers Association ("Union"). The Union is party to a collective bargaining agreement ("Union Contract") which sets forth the terms and conditions of employment for teachers, including the terms for teacher evaluations and the resolution of disputes arising out of the Union Contract. Among other things, the Union Contract permits administrators to schedule up to three classroom observations during a tenured teacher's evaluation and provides that disputes over alleged Union Contract violations shall be resolved through a four-step grievance procedure that culminates in arbitration.

  In May 2001, Streamwood High School's special education teachers were required to adjust their schedules in response to changes in special education required by Corey H. v. Bd. of Educ. of Chicago, 995 F. Supp. 900 (N.D.Ill. 1998) (altering the manner in which special education students in Illinois receive classroom instruction) and to accommodate construction and remodeling at the high school. Prior to the 2001-2002 school year, both Plaintiffs taught five classes from 7:30 a.m. to 12:10 p.m. with the remainder of their days allocated to lunch, supervision, and planning periods. The new schedule, to take effect in the 2001-2002 school year, required the Plaintiffs to teach five academic subjects throughout the day plus one supervisory period, one planning period, and one lunch period. Andrekus and VanZuidam believed that the Fall 2001 schedules violated their Union Contract and on June 1, 2001, they initiated a Union grievance challenging the schedules. On August 23, 2001, the School District agreed to reduce Andrekus's and VanZuidam's assignments to three classes and two supervision periods each. As a result of this resolution, the Defendants were required to retain a teacher to fill in for the classes Andrekus and VanZuidam no longer taught. In addition to changing schedules and classroom assignments, in the Fall of 2001, Streamwood's Special Education Department hired a new dean, Diane McFarlin. McFarlin's responsibilities included implementing student discipline when students misbehaved and setting certain policies for the Special Education Department. In one of her first decisions as dean, on September 5, 2001, McFarlin issued a memo to Andrekus and VanZuidam placing special education teachers' off-campus activities on hold until further notice. On October 9, 2001, McFarlin notified special education teachers that they could resume their field trips.

  On September 26, 2001, Andrekus sent a letter to the Illinois State Board of Education ("ISBE"). The September 26, 2001 letter purported to speak on behalf of all Emotional Disturbance/Behavioral Disorder ("ED/BD") staff and students and alleged that Streamwood High School was deliberately not complying with state guidelines limiting special education class sizes. The letter also described the difficulties that students and teachers were having due to the Department's new schedules, room assignments and policies. On the signature line of that letter Andrekus wrote "The Special Education Teachers at SHS" and then listed nine teachers by name whom the ISBE could contact if it had further questions. The list of nine teachers included Andrekus and VanZuidam. Andrekus did not obtain permission from Streamwood's special education teachers to attribute the letter to them nor did she present the letter to the teachers before forwarding it to the ISBE. When the other special education teachers learned of Andrekus's actions they sent a retraction letter to the ISBE stating that they had not authorized the use of their names on the September 26, 2001 letter. The retraction letter was signed by all of the teachers listed by name on the September 26, 2001 letter, except for Andrekus and VanZuidam. After learning about the retraction letter, Andrekus sent a second letter to the ISBE on October 2, 2001 ("ISBE letter"). The October 2, 2001 letter was identical to the September 26, 2001 letter except that it was signed only by Andrekus. At some point after the ISBE letter was sent, VanZuidam had a private telephone conversation with Donna Schertz, an employee of the ISBE. Later in October 2001, the ISBE notified Defendant Smith that a complaint had been filed and ultimately sent Defendants Smith and Edwards a copy of the ISBE letter, which contained only Andrekus's signature. All ISBE correspondence received by Smith and Edwards subsequent to the initial complaint referred to Andrekus and not VanZuidam. (Defs.' L.R. 56.1 Statement ¶ 53.)

  The Plaintiffs allege that the Defendants systematically retaliated against them after they learned of the complaints to the ISBE. On about three occasions during the 2001-2002 school year substitute teachers were not retained to cover Andrekus's pre-approved absences or her attendance at the individual education plan meetings ("IEP meetings") of students for whom she was a case manager. On two or three other occasions, Andrekus did not receive the ten days advance notice of an IEP meeting to which she believed she was entitled. On two occasions Andrekus's teaching assistant taught her class while she attended an IEP meeting. Over the course of the 2001-2002 school year, Andrekus was removed as case manager for three students at their parents's request. Also that year, there were instances when McFarlin did not take final disciplinary action when Andrekus and VanZuidam referred students for discipline. Andrekus and VanZuidam were both scheduled to receive the maximum number of classroom observations (three) permitted by their Union Contract in the 2002-2003 school year. And finally, before the start of the 2002-2003 school year, VanZuidam was assigned to teach the Computer Application Programs for Special Education Students ("CAPSE") course.

  Upset with the Streamwood High School and Special Education Department, the Plaintiffs filed grievances in February and April of 2002. In accordance with their Union Contract, a level III grievance hearing was scheduled before the Board of Education for May 13, 2002. Against the Plaintiffs' protestations, the Board of Education allowed Defendants Hain and McFarlin to attend the grievance hearing. On June 4, 2002, the Plaintiff's filed their five-count Complaint against the Defendants. On September 24, 2002, the Plaintiffs filed an unfair labor practice charge with the Illinois Educational Labor Relations Board ("IELRB") objecting, among other things, to the Board of Education's conduct at the May 13, 2002 grievance hearing.

  On March 20, 2003, District Judge Guzman dismissed Counts III, IV and V of the Plaintiffs' Complaint.*fn1 On August 5, 2003, the IELRB dismissed the Plaintiffs' unfair labor practice charge for lack of evidence. (Id. ¶ 79.) Defendants now move this court to grant summary judgment and dismiss Plaintiffs' remaining Counts I and II.

  II. Discussion

  Defendants filed a Motion for Summary Judgment claiming that there are no genuine issues of material fact regarding Plaintiffs' Count I allegations of First Amendment retaliation or Plaintiffs' Count II allegations of Equal Protection violations.

  Summary judgment is appropriate when the record shows "that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R. Civ. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Sinkler v. Midwest Prop. Mgmt., Ltd., 209 F.3d 678, 683 (7th Cir. 2000). In determining whether summary judgment is appropriate, the Court must view the evidence, and draw all reasonable inferences therefrom, in the light most favorable to the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Kennedy v. United States, 965 F.2d 413, 417 (7th Cir. 1992). However, if the nonmovant bears the burden of proof on an issue she may not simply rest on the pleadings, but rather must affirmatively set forth specific facts establishing the existence of a genuine issue of material fact. See Celotex, 477 U.S. at 322-26.

  Summary judgment is appropriate when the nonmoving party "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Id. at 322. If taking the record in its entirety cannot lead a rational trier of fact to find for the nonmoving party, then there is no genuine issue for trial and summary judgment must be granted. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

  A. Count I — First Amendment Retaliation

  In Count I of their Complaint, Plaintiffs allege that Defendants violated their First Amendment rights when Defendants retaliated against them for sending the ISBE letter complaining about conditions in Streamwood High School's special education program. A plaintiff alleging retaliation under 42 U.S.C. § 1983 and the First Amendment must show that her speech was (1) constitutionally protected and (2) a substantial or motivating factor in the retaliatory action. Spiegla v. Hull, 371 F.3d 928, 935 (7th Cir. 2004). In the case of public employees, courts use the Connick-Pickering test to determine if the speech is constitutionally protected. Under the Connick-Pickering test the speech must be a matter of public concern and the employee-citizen's interest in commenting on the matter must outweigh the employer-government's interest in promoting effective and efficient public service. See Connick v. Myers, 461 U.S. 138, 147-48 (1983); Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968); Spiegla, 371 F.3d at 940. To establish that speech was a substantial or motivating factor in the retaliatory action the plaintiff must show that the protected speech caused, or at least played a substantial part in, the employer's decision to take adverse employment action against her. Spiegla, 371 F.3d at 942. An adverse employment action is any action taken under color of law that creates the potential for chilling an employee's speech on matters of public concern. Power v. Summers, 226 F.3d 815, 820-21 (7th Cir. 2000); DeGuiseppe v. Vill. of Bellwood, 68 F.3d 187, 192 (7th Cir. 1995). While the adverse action need not be monstrous, it must be more than a mere inconvenience and the employee must be made worse off by it. DeGuiseppe, 68 F.3d at 192. Finally, even if the plaintiff satisfies her two-part test, the defendant must have the opportunity to show that she would have taken the same actions even in the absence of the protected speech. See Spiegla, 371 F.3d at 935; Sandoval v. Calumet Pub. Sch. Dist. No. 132, 2004 WL 1588276, at *10 (N.D.Ill. July 15, 2004).

  1. Speech Must Be A Matter of Public Concern

  The Defendants argue that the ISBE letter upon which Plaintiffs base their First Amendment retaliation claim is not constitutionally protected speech because it represents the private grievances of an individual employee and is not a matter of public concern. To be constitutionally protected, a public employee's speech must be a matter of public concern. See Connick, 461 U.S. at 147-48. Whether a matter is of public concern depends on the content, form and context of a given statement. Id.; Belk v. Town of Minocqua, 858 F.2d 1258, 1264 (7th Cir. 1988). A statement is of public concern when it relates to a matter of political, social or other concern to the community, rather than merely a personal grievance of interest only to the employee. Gustafson v. Jones, 290 F.3d 895, 907 (7th Cir. 2002). Thus, a speaker's motive "may play some part in determining whether the speech is of public concern because speech that promotes a purely private interest is not protected." Marshall v. Porter County Plan Comm'n, 32 F.3d 1215, 1219 (7th Cir. 1994); Colburn v. Trs. of Indiana Univ., 973 F.2d 581, 586-87 (7th Cir. 1992). Motive, however, is not assessed in a vacuum. ...

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