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Leila Diab v. Chicago Board of Education

February 7, 2012


The opinion of the court was delivered by: Hon. Marvin E. Aspen


MARVIN E. ASPEN, District Judge:

Presently before us is a motion for summary judgment filed by Defendants Chicago Board of Education and George Szkapiak, seeking dismissal of the eight-count complaint against them filed by Plaintiff Leila Diab. Diab alleges that Defendants discriminated and retaliated against her, and subjected her to a hostile work environment, on the basis of her age, national origin, race and religion. For the reasons set forth below, we grant the motion in part, and deny it in part.


Diab is a sixty-four year old Arab woman and an observing Muslim of Palestinian national origin. (Defs.' Facts ¶ 1.) In 2002, Diab was hired to teach social studies and English as a second language ("ESL") at John F. Kennedy High School ("Kennedy"). (Id. ¶ 2.) She continued to work for the Chicago Board of Education as a tenured teacher until her resignation on December 20, 2010. (Id. ¶ 1.) At the time she resigned, Diab had not yet completed her seventeenth year in the Chicago school system. (Pl.'s Facts ¶ 83 & Diab Dep. at 246.)

In July 2008, George Szkapiak became principal at Kennedy. (Defs.' Facts ¶ 3.) Diab and Szkapiak had previously worked together at Richards Career Academy, where they had maintained an amicable working relationship. (Id. ¶ 4.)


Prior to Szkapiak's arrival at Kennedy, Diab's evaluations rated her as either Superior or Excellent. (Pl.'s Facts ¶ 45.) Nonetheless, Diab's supervisors towards the end of her tenure felt her performance was inadequate in several ways. We will first address issues regarding her teaching skills, including her classroom management and grading practices.*fn2 We will then review numerous interpersonal conflicts she identifies in support of her discrimination claims.

A. Teaching Skills

In reviewing the materials before us, we discern two types of alleged concerns about Diab's substantive work: her classroom management skills and grading practices.

I. Classroom Performance and Student Disruptions

The record indicates that Diab's supervisors felt that she lacked sufficient classroom skills. For example, Assistant Principal Soledad Ruiz, who observed Diab's classes on roughly five occasions, felt that Diab had problems with classroom management. (Ruiz Dep. at 86, 88, 90--93, 103--04.) Ruiz further testified that Diab ranked in the bottom 10% of teachers at Kennedy. (Id. at 167--68.) Assistant Principal Christopher Pawelczyk observed Diab's teaching at least seven times beginning with the 2008-2009 year and similarly concluded that Diab was not a strong teacher. (Pawelczyk Dep. at 33--36.) Pawelczyk found that Diab's teaching was fragmented and failed to challenge the students, leaving the class unengaged. (Id. at 36.)

Based on his frequent observations, Szkapiak also identified numerous issues with Diab's in-class performance, such as a lack of connection and/or chronological flow between her lessons, flawed or ineffective instructions to the class, and inaccurate attendance recordkeeping. (Szkapiak Dep. at 87--112.) Szkapiak testified that many students requested to transfer out of Diab's class-moreso than any other teacher-although he did not document these informal conversations. (Id. at 164--65.) On November 2, 2009, Szkapiak sat in on Diab's world studies class. (Id. at 103.) Diab had planned for the class to hold a Jeopardy-style review session. (Id. at 105.) Szkapiak felt that Diab's instructions to the class were unclear, resulting in the use of significant class time (more than half) to set up the game logistically. (Id. at 105--07.) In addition, as he later discussed with her, Szkapiak found that Diab frustrated the class when she rejected an answer provided by the textbook. (Id. at 108--09.) Specifically, one question asked the student to identify Jesus Christ's religion, and the student responded that Jesus had been born into Judaism per the textbook. (Id. at 108.) Diab then corrected the student, noting that different sources present multiple views on the matter. (Id.; see also Pl.'s Facts ¶ 63.) Diab perceived Szkapiak's critique as discriminatory; he testified, however, that his point was that Diab needed to have a "right or wrong answer" based on the class materials for the quiz format to be effective and engaging. (Szkapiak Dep. at 108--09; Pl.'s Facts ¶ 63.)

While Szkapiak, Ruiz and Pawelczyk felt Diab's teaching was insufficient, several of Diab's colleagues share a different opinion. Jason Kelly, a science teacher at Kennedy, and Tim Kelly, an English teacher, both felt that Diab was a good teacher who was able to keep her students on task. (Pl.'s Facts ¶¶ 46--47; J. Kelly Dep. at 58--61.) Tim Kelly recommended Diab for the Chicago Teacher's Union Women's History Month Award, which she received in 2007. (Pl.'s Facts ¶ 46; see also Pl.'s Facts, Ex. R, T. Kelly Ltr.) Khetam Khairallah, another social studies teacher, had regular opportunities to observe Diab's classes from 2005 through 2008 and felt that Diab had a good rapport with her students and good classroom management. (Khairallah Dep. at 65--66.) While praising Diab's skills, Khairallah noted that beginning with the 2009-2010 school year, Diab faced escalating problems with classroom management. (Id. at 66.) In fact, generally speaking, it is undisputed that Diab began having greater difficulty with student conduct during her last few school years, which shall be discussed in greater detail below.

a. 2008 -- 2009 School Year

During the 2008-2009 school year, Diab asked Szkapiak for help with an increasing number of classroom disruptions. (Pl.'s Resp. to Defs.' Facts ¶ 22.) Diab sought suggestions on classroom management and discipline but Szkapiak did not offer anything she didn't already know. (Diab Dep. at 183.) On March 24, 2009, the majority of students in Diab's class became unruly, refusing to listen to her after another student acted out, and Diab requested back-up. (Pl.'s Facts, Ex. Q (Diab 3/24/09 Notes) at 1.) Szkapiak arrived, heard about the situation, and stepped in to teach the remainder of the class-including assigning homework and returning to collect it the following day. (Id.; Diab Dep. at 181--82; Szkapiak Dep. at 130--34.) Diab, as well as two fellow teachers, perceived that Szkapiak's response was disrespectful and undermined her authority. (Pl.'s Facts. Ex. Q (Diab 3/24/09 Notes) at 3; Khairallah Dep. at 71; T. Kelly Dep. at 63.) Szkapiak did not recall ever taking over another teacher's class while principal at Kennedy. (Szkapiak Dep. at 133--35.)

Szkapiak returned to observe this class two days later. Moreover, Diab testified that Szkapiak sat in on her classes four days a week for three consecutive months during that school year. (Diab Dep. at 238--40.) Although Szkapiak disputes this reported frequency, there is no dispute that Szkapiak observed Diab's teaching more often than any other instructor. (Pl.'s Resp. to Defs.' Facts ¶ 25.)

b. 2009 -- 2010 School Year

In September 2009, Diab had a particularly unruly student, D.A., in her 8th period world studies class. (Pl.'s Facts, Ex. P (9/30/09 Diab Notes); Szkapiak Dep. at 138--40; Diab Dep. at 175--77.) D.A. disrupted classes for others teachers and assaulted Diab on three occasions. (Pl.'s Facts, Ex. P (9/30/09 Diab Notes); Szkapiak Dep. at 138--40; Diab Dep. at 179--80.) According to Diab, D.A. became increasingly disrespectful and disruptive in the middle of September and then threw a pencil at her on September 23, 2009. (Pl.'s Facts, Ex. P (9/30/09 Diab Notes) at 1.) He then disappeared; when she looked for him and began to close the classroom door, he yanked it closed from the other side (where he was lurking), injuring her arm. (Id.; Diab Dep. at 177.) D.A. returned to class on September 29, 2009, at which time he stood near Diab's desk, picked up her stapler, and began throwing staples at her. (Pl.'s Facts, Ex. P at 1--2 (9/30/09 Diab Notes); Diab Dep. at 176.) Security removed him, and he was transferred to another class.*fn3 (Pl.'s Facts, Ex. P (9/30/09 Diab Notes) at 2; Diab Dep. at 177; Szkapiak Dep. at 138--39.) Diab expressed fear for her own safety and yet, on the other hand, also felt that the Kennedy administration should have helped her facilitate a meeting between her and D.A. and/or his guardian to try and resolve the situation. (Pl.'s Facts, Ex. P (9/30/09 Diab Notes) at 1--2; Diab Dep. at 178--79; see Pl.'s Resp. to Defs.' Facts ¶ 21.)

Diab's problems with this world studies class continued after D.A. departed, however. In October 2009, students tore off the front and back covers of her mother of pearl Quran, which she had brought to complement her lesson. (Pl.'s Facts ¶ 61.) Diab requested that Pawelczyk speak to her class about this matter. (Id.) Although Pawelczyk observed the class, he did not address the students. (Id.; see also Pawelczyk Dep. at 70--73.) Pawelczyk felt that Diab handled the situation well and that he need not do more than support her with his presence. (Pawelczyk Dep. at 72--73; Pl.'s Facts Ex. P (9/30/09 Diab Notes) at 4.)

In November 2009, a student reported that Diab called another student "gay." (Defs.' Facts ¶ 32.) Szkapiak immediately investigated, speaking with both Diab and another student witness. (Szkapiak Dep. at 147--51.) He concluded that there was no support for the allegation and took no further action. (Id. at 150--51; see Pl.'s Resp. to Defs.' Facts ¶ 32.)

Diab's troubles with her world studies class came to a head in January 2010. Students had belittled, ignored and insulted her on several occasions. (Pl.'s Facts ¶ 61 & Ex. Z (Diab 1/21/10 Notes).) On January 14, 2010, however, a world studies student, B.W., accused Diab of making derogatory comments about Mexican and Polish students. (Defs.' Facts ¶ 29; Szkapiak Dep. at 151--52.) Specifically, B.W. told Szkapiak that Diab told a student to "go back to Mexico."*fn4 (Szkapiak Dep. at 154; Pl.'s Facts, Ex. S (2/25/10 Hrg. Summary).) Szkapiak instructed B.W. to send him an email describing what she witnessed, which she did.*fn5 (Szkapiak Dep. at 152--55.) After consulting with the legal department, Szkapiak began his investigation by interviewing six or seven other students in that class.*fn6 (Id. at 155--60.) After the students corroborated B.W.'s account, Szkapiak issued Diab a pre-disciplinary hearing notice advising her of the complaint. (Id. at 160--61.) At the hearing, held February 25, 2010, Diab denied the allegations. (Pl.'s Facts, Ex. S (2/25/10 Hrg. Summary).) Nonetheless, Szkapiak credited the statements of the students he interviewed-one of whom Diab wanted to use as a character reference herself-and imposed a two-day suspension without pay. (Id. at 2.) Diab appealed Szkapiak's decision to the Board Office of Employee Relations but the suspension was upheld. (Defs.' Facts ¶ 30.) Diab testified that, during the hearing, Szkapiak commented that she intimidates students by telling them that she was educated at a Quaker school in the Middle East-a comment she found demeaning.*fn7 (Diab Dep. at 41.) She also complained by letter to the Department of Labor Employee Relations Director about the suspension and other alleged discrimination, but she received no response. (Defs.' Resp. to Pl.'s Facts ¶ 76.) The student's accusations and investigation upset Diab, who took a leave of absence at her doctor's orders. (Diab Dep. at 221--25, 234.) Diab then filed her first EEOC charge on April 22, 2010. As discussed in more detail below, Diab contends that other non-Arabic, non-Muslim teachers were treated more favorably when accused of inappropriate comments in the classroom. (See Pl.'s Resp. to Defs.' Facts ¶ 31.)

c. 2010 -- 2011 School Year

Diab returned to work, after her leave of absence and summer break, on September 1, 2010. (Diab Dep. at 237--38.) Diab continued to have problems with disruptive and disrespectful students. For example, a student directed a highly offensive comment at Diab in Fall 2010. (Diab Dep. at 244; Ruiz Dep. at 131--32; Defs.' Resp. to Pl.'s Facts ¶ 64.) Diab alleges that Pawelczyk instructed her not to use the PA system any more to call security when her students got out of hand. (Pl.'s Facts ¶ 81.) Pawelczyk did not believe he made any such statement. (Pawelczyk Dep. at 89.) Neither Ruiz, nor Szkapiak, had any personal knowledge about Pawelczyk's alleged warning. (Ruiz Dep. at 112; Szkapiak Dep. at 189.)

ii. Grading Practices

On December 3, 2010, Szkapiak questioned Diab about her grading practices. Indeed, the events of December 3, 2010 culminated in her resignation. (Diab Dep. at 240.)

December 3, 2010 was a staff development day. According to Szkapiak, it had been the practice at Kennedy for several years that teachers would forgo a lunch break on development days so that they could leave early to start the weekend. (Szkapiak Dep. at 191.) Szkapiak also testified that he clearly articulated this expectation to the teachers. (Id. at 195.) Khairallah testified that she didn't think there was a policy prohibiting teachers from leaving school on a development day, so long as they signed in and out. (Khairallah Dep. at 92--93.) On December 3, 2010, Szkapiak looked for Diab and repeatedly called for her on the PA system. (Khairallah Dep. at 92; Szkapiak Dep. at 190--92.) Szkapiak discovered that she had left the building to eat with another teacher, Marilyn Duhig. (Szkapiak Dep. at 191--92.) When they returned, Szkapiak spoke with them individually, reminded them of the staff agreement, and informed them that they would need to make up the hour they had taken as a break. (Id. at 192, 194--95.) Diab stayed to make up the lost time that afternoon, and Duhig, who could not stay late that day, made up the time the following Monday. (Id. at 194--95; see also Diab Dep. at 226--27.) During his meeting with Diab, Szkapiak asked for her grades. Szkapiak testified that several students had complained late that semester that Diab's grading was not accurate. Specifically, they claimed that Diab would give students 100s even when they provided incorrect answers. (Szkapiak Dep. at 113--22, 193--94.) After receiving three notes from students with grading complaints, Szkapiak asked Pawelczyk, who oversaw the social studies department, to investigate. (Id. at 119--21.) Pawelczyk asked students for copies of their work to check for inconsistencies in Diab's grading-which he found and reported to Szkapiak. (Id. at 121--22.) During the December 3, 2010 meeting, Szkapiak asked Diab for samples of her student coursework to see if there was any merit to the students' complaints.*fn8 (Id. at 193--94.) When Diab went to retrieve her folders from her classroom, she discovered that they were missing. (Diab Dep. at 227--31.) Someone had removed the folders from her desk. (Id.; see also Khairallah Dep. at 93--94.) Diab testified that every single student had earned and received 100s. (Diab Dep. at 230--31.) She felt that Szkapiak's questioning was somewhat "ironic" because her grading had never been questioned before and because her folders suddenly disappeared. (Id. at 230--33.) Although she told Szkapiak that she would bring the folders to him on Monday, she never returned to Kennedy. (Id. at 229; Szkapiak Dep. at 193.)

Diab became distraught in light of these events and attempted to take another medical leave, but her leave request was denied. (Pl. Resp. to Defs.' Facts ¶ 42.) Accordingly, she resigned on December 20, 2010. (Id.)

B. Diab's Interactions at Kennedy

In addition to the above, Diab's claims are based on several allegedly discriminatory interactionswith fellow staff members at Kennedy. We thus recount the relevant facts about such instances, generally in chronological order.

Shortly after her arrival at Kennedy in 2002, another teacher-Paul Hease-put a Bible in Diab's office mailbox and told her that she should learn about Christianity. (Diab Dep. at 36--40.) The two then discussed this issue, and Hease apologized about six months later. (Id.) Several years later, in 2010, Hease commented in the staff lounge that Muslims were insane and terrorists. (Id. at 37--38.) Diab called Hease out on this comment but did not report the incident to Szkapiak or the assistant principals. (Id. at 38--39.)

On January 12, 2009, Diab received something else unwelcome in her office mailbox: a note reading "Israel is doing OK." (Defs.' Facts ¶ 16.) Diab felt threatened and cried upon finding the note, which she stated followed the killing of 9,000 people in Gaza refugee camps by the Israelis. (Pl.'s Facts ¶ 48.) Diab reported the incident to Szkapiak, who indicated (and later confirmed) that the security cameras would not have captured the act. (Id.; Szkapiak Dep. at 77.) Diab testified that Szkapiak also commented that the note was "only words," but Szkapiak did not recall making such a statement. (Defs.' Resp. to Pl.'s Facts ¶ 48; Szkapiak Dep. at 70.) After speaking with Diab, Szkapiak immediately contacted the legal department for guidance. (Szkapiak Dep. at 70, 78--79.) He filled out an incident report, which was filed and sent directly to the Labor and Employee Relations Office, as well as the Office of Safety and Security. (Id. at 72--80.) Szkapiak was not aware of any investigation undertaken by those departments. (Id. at 76--77.)

Diab expected Szkapiak to address this matter with the staff, as early as a meeting that same afternoon. (Defs.' Facts ΒΆ 19; see Diab Dep. at 143--44, 49, 160; Khairallah Dep. at 53.) He did not, however. Diab and her colleague, Khairallah, were concerned that Szkapiak had not taken public action to rectify the situation and asked him do so, about a week after the incident. (Diab Dep. at 163--64; Khairallah Dep. at 50--52.) Szkapiak asked what they wanted him to do, and they instructed him to issue a memo. (Diab Dep. at 164; Khairallah Dep. at 51--52.) Diab and Khairallah then helped Szkapiak prepare a memo. (Diab Dep. at 164; Khairallah Dep. at 51--52.) Although that memo admonished the staff to practice cultural sensitivity, particularly in regard to the usage of mailboxes, Diab and Khairallah felt that Szkapiak's response was insufficient because: (1) he did not specifically mention intolerance against ...

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