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Amy Silverman v. Board of Education of the City of Chicago

March 21, 2011

AMY SILVERMAN, PLAINTIFF-APPELLANT,
v.
BOARD OF EDUCATION OF THE CITY OF CHICAGO, DEFENDANT-APPELLEE.



Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 08 C 2220-Blanche M. Manning, Judge.

The opinion of the court was delivered by: Hamilton, Circuit Judge.

ARGUED JANUARY 18, 2011

Before TINDER and HAMILTON, Circuit Judges, and MURPHY, District Judge.*fn1

Amy Silverman sued the Board of Education of the City of Chicago alleging that the Board first discriminated against her on the basis of her pregnancy and then retaliated against her for filing a charge with the Equal Employment Opportunity Com-mission, both in violation of Title VII of the Civil Rights Act of 1964 as amended by the Pregnancy Discrimination Act.

From July 2004 until May 2005, Silverman worked at Lincoln Park High School as one of seven probationary special education teachers whose employment contracts were subject to annual renewal. When the Board decided to eliminate one special education teaching position at Lincoln Park in the spring of 2005, school principal Bessie Karvelas chose Silverman, who was pregnant at the time. Silverman filed a complaint with the EEOC charging that the Board violated Title VII by not renewing her contract because she was pregnant. Two months later, the Board offered Silverman a new position teaching autistic students at the same school. Silverman accepted this new position, but the Board decided not to renew her contract at Lincoln Park a second time in the summer of 2006.

After the EEOC found reasonable cause to believe that the Board discriminated against her, Silverman brought suit in the Northern District of Illinois. Her first claim echoed her original discrimination complaint to the EEOC, alleging that the Board decided not to renew her contract in May 2005 because she was pregnant. Silverman also claimed that the Board retaliated against her for having filed a charge with the EEOC by offering her a more difficult position for the 2005-2006 school year and by not renewing her contract after that school year.

The district court granted summary judgment to the Board on both counts, and this appeal followed. We review the district court's decision de novo, construing all facts in the light reasonably most favorable to Silverman as the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). Even in this light, we conclude that Silverman has not presented sufficient evidence to defeat the Board's motion on either of her claims.

I. The EEOC Determination

Before digging into the merits of the parties' arguments, we address first the district court's treatment of the EEOC's administrative determination. After investigating Silverman's charges, the EEOC found reasonable cause to believe that the Board discriminated against Silverman because of her pregnancy and retaliated against her for filing a discrimination charge. Silverman argues that the EEOC determination alone ought to show that the district court erred by granting summary judgment to the Board. The district court chose not to consider the EEOC determination in deciding the Board's motion for summary judgment. We conclude that the district court acted well within its discretion, and pursuant to its obligation to make a de novo decision on the plaintiff's claims.

We held in Tulloss v. Near North Montessori School, Inc., 776 F.2d 150, 152-54 (7th Cir. 1985), that the district judge, as fact-finder, has "great discretion" in the treatment of an EEOC reasonable cause determination. We explained that Congress rejected a proposal to provide only deferential judicial review to EEOC findings, and chose instead to give the parties a right to de novo review by district courts of the merits of charging parties' discrimination claims, so that "the fact-finder is a district judge rather than an administrative agency hearing officer." Id. at 152, citing H.R. Rep. No. 92-238, at 58-63. We also observed that the need for discretion was "even more important" in the context of claims tried to a jury in light of the greater risks of prejudice, misinterpretation, and delay. Id. at 153 n.2. (In 1991, after Tulloss was decided, Congress amended Title VII to provide for jury trials in cases like Silverman's. See 42 U.S.C. § 1981a(c), enacted as section 102 of the Civil Rights Act of 1991, Pub. L. No. 102-166.)*fn2

Whether an EEOC determination is in favor of a charging party or a respondent, a district judge or jury cannot evaluate the weight it deserves, if any, without understanding what evidence was presented to the EEOC and whether that evidence is properly admissible in court. See, e.g., Tulloss, 776 F.2d at 154-55 (describing prejudicial and inadmissible contents of EEOC investigative file). That sort of effort will rarely add much to the probative value of the admissible evidence that is actually submitted to the court or jury for a de novo decision on the merits. See Lewis v. City of Chicago Police Department, 590 F.3d 427, 442 (7th Cir. 2009) (concluding district court did not abuse its discretion by excluding EEOC reasonable cause determination); Young v. James Green Management, Inc., 327 F.3d 616, 623-25 (7th Cir. 2003) (affirming decision to exclude EEOC findings of discrimination from evidence in jury trial).

Silverman contends without explanation that some evidentiary material available to the EEOC was not available to the district court. As the district court observed, however, the parties had every opportunity to present their full case, including evidence offered in the EEOC proceedings, in the district court. The district court did not abuse its discretion in deciding that the EEOC determination was not probative in its analysis. For the same reason, neither is it probative in ours. We proceed to the merits of Silverman's claims.

II. The Claim of Pregnancy Discrimination

Title VII of the Civil Rights Act of 1964 makes it unlawful for an employer to discharge or otherwise discriminate against an employee because of that person's sex. See 42 U.S.C. § 2000e-2(a)(1). The Pregnancy Discrimination Act of 1978, Pub. L. No. 95-555, added a definition to 42 U.S.C. § 2000e(k) to make clear that "discrimination based on a woman's pregnancy is, on its face, discrimination because of her sex." Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462 U.S. 669, 684 (1983). As with other Title VII claims, a plaintiff may prove pregnancy discrimination either directly or indirectly. See Griffin v. Sisters of St. Francis, Inc., 489 F.3d 838, 844 (7th Cir. 2007). To avoid summary judgment under the direct approach, the plaintiff must produce sufficient evidence, either direct or circumstantial, to create a triable question of intentional discrimination in the employer's decision. Miller v. American Family Mutual Insurance Co., 203 F.3d 997, 1005 (7th Cir. 2000); Geier v. Medtronic, Inc., 99 F.3d 238, 241 (7th Cir. 1996). A plaintiff also may proceed under the indirect, burden-shifting method adapted from McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). Like the district court, we conclude that Silverman did not present sufficient evidence under either approach to defeat the Board's motion.

A. The Direct Method

To succeed under the direct method, Silverman must offer either direct evidence that would prove the fact in question-the discriminatory intent-without reliance on inference or presumption, Venturelli v. ARC Community Services, Inc., 350 F.3d 592, 599 (7th Cir. 2003), or "a convincing mosaic" of circumstantial evidence that would allow a jury to infer intentional discrimination by the decisionmaker. See Coffman v. Indianapolis Fire Department, 578 F.3d 559, 563 (7th Cir. 2009), quoting Phelan v. Cook County, 463 F.3d 773, 779 (7th Cir. 2006); Davis v. Con-Way Transportation Central Express, Inc., 368 F.3d 776, 783-84 (7th Cir. 2004). Silverman has no direct evidence of intent to discriminate against her on the basis of preg-nancy, so she relies on the latter approach.

A plaintiff using the "convincing mosaic" approach to prove a discrimination claim under the direct method may present any of three broad types of circumstantial evidence. The first type includes "suspicious timing, ambiguous statements oral or written, behavior toward or comments directed at other employees in the protected group, and other bits and pieces from which an inference of discriminatory intent might be drawn." Troupe v. May Department Stores Co., 20 F.3d 734, 736 (7th Cir. 1994). Silverman relies principally on this type of evidence, and it will be the focus of our attention. The second type is evidence showing that the employer "systematically treated other, similarly situated, non-pregnant employees better." Venturelli, 350 F.3d at 601. Silverman offered no potentially probative evidence of this type.*fn3 Finally, the third type of circumstantial evidence is evidence that the plaintiff suffered an adverse employment action and that the employer's justification is pretextual. See id. Cf. Troupe, 20 F.3d at 736 (de-scribing the third type of evidence as evidence that the plaintiff was passed over or replaced by another, and that the employer's justification was pretextual). This type of evidence is substantially the same as the evidence required to prove discrimination under the indirect method, so we address Silverman's attempt to show pretext in that context below. See Huff v. UARCO, Inc., 122 F.3d 374, 380 (7th Cir. 1997).*fn4

As to her "bits and pieces" evidence, Silverman relies on a statement made by principal Karvelas, along with conflicting testimony regarding when Karvelas found out Silverman was pregnant, and suspicious timing of the non-renewal of Silverman's ...


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