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Penk v. Board of Education of Ball-Chatham Community Unit School District No. 5

United States District Court, Seventh Circuit

September 6, 2013

DAVID P. PENK, Plaintiff,


SUE E. MYERSCOUGH, District Judge.

This cause is before the Court on Defendant the Board of Education of Ball-Chatham Community Unit School District No. 5's Motion for Summary Judgment (d/e 22). Defendant's Motion is GRANTED. Plaintiff has failed to demonstrate a connection between a lower level employee's gender animus and the decision to transfer Plaintiff. Furthermore, Plaintiff has not demonstrated that Defendant's reason for transferring Plaintiff is pretexutal.


Plaintiff obtained his Illinois teacher's certification in 1990. Plaintiff has certifications to serve as a counselor or as an administrator, including a superintendent.

From the 2001-2002 school year until the 2007-2008 school year, Plaintiff served as a guidance counselor at Glenwood High School in District No. 5, Chatham, Illinois. Plaintiff became a tenured faculty member at Glenwood High School in 2005.

On March 18, 2008, District No. 5 Superintendent Robert Gillum decided to seek Plaintiff's transfer from Plaintiff's ten (10) months paid Glenwood High School guidance counselor position to a nine (9) months paid language arts teaching position at Glenwood Middle School. In March 2008, the Ball-Chatham Board of Education approved Plaintiff's transfer. Plaintiff argues that he never wanted the transfer and states that Defendant transferred Plaintiff because he is a man. Plaintiff still serves as a language arts teacher at Glenwood Middle School.

A. Changes In Guidance Faculty Occurred Prior to the 2007-2008 School Year

Before the 2007-2008 school year began, the administrator of the guidance department, Mike Wisniewski, resigned and guidance department chair, Frank Ramsey, retired. Todd Graba replaced Wisniewski and became Plaintiff's immediate supervisor. Graba reported to Glenwood High School Principal, Nathaniel Cunningham.

Cheryl Mullen, who had been a counselor at Glenwood High School since the 2005-2006 school year, replaced Ramsey as the guidance department chair. Mullen acted as a liaison between the department and administration in her capacity as department chair. However, Mullen had no authority or say in personnel decisions. Plaintiff alleges that when Mullen and Plaintiff first met, Mullen told Plaintiff she had no need for men after her experience with her ex-husband. Mullen denies saying this to Plaintiff. See d/e 31 at 38.

After Frank Ramsey retired, Plaintiff became the only male counselor in the guidance department. The female guidance counselors ate lunch in an area known as the hen house. The parties dispute whether men were allowed to eat in the hen house. Further, Plaintiff claims that the females did not include him in a Christmas gift exchange in 2007. Defendant disputes this. Neither party has indicated exactly how many female counselors were in the guidance department during the 2007-2008 school year.

In addition to Plaintiff's allegations about Mullen and the other female counselors, Plaintiff alleges that Kristie A. Zimmermann, a female counselor at Glenwood High School since the 1998-1999 school year, suggested that Plaintiff pursue open employment positions outside of Glenwood High School. Plaintiff states that Zimmermann made these comments between 2006 and 2008. Zimmermann states that she had no ill intent when she suggested these opportunities to Plaintiff.

B. Plaintiff Complained to Glenwood High School Administrators About Mullen's and Zimmermann's Conduct Even Though He Was Not the Administrator In Charge of the Guidance Department

On February 22, 2008 Mullen and Zimmermann had an unexcused absence on a school day. This occurred after Mullen and Zimmermann attended a meeting at the Southern Illinois University School of Nursing, went to lunch, took a longer than usual lunch, and decided to return to Chatham after the lunch. Mullen and Zimmermann arrived in Chatham at around 2:30 or 2:45 p.m. Instead of returning to the school, Mullen and Zimmermann decided to go home without notifying administrators. Mullen and Zimmermann received "coaching" from their immediate supervisor Todd Graba. Graba told the women they were not to leave school before the end of the day without permission.

Besides those unexcused absences, Plaintiff alleges that Mullen and Zimmermann acted unprofessionally by speaking about bras, lingerie, and panties in front of Plaintiff. Zimmermann agrees that the women may have talked about feminine issues in front of Plaintiff and that Zimmermann may have said she thought a celebrity was hot. See d/e 30 at 20-22. Mullen, on the other hand, disputes the allegations. See d/e 31 at 36. Mullen and Zimmermann agree, however, that an employee in the guidance department, Nichole Inkel-Pongracz, brought "fluffers" into the office and explained how fluffers are used in pornographic films to arouse males. See d/e 30 at 21; d/e 31 at 36. Plaintiff never filed a formal harassment complaint.

Further, Plaintiff complained to administrators that Mullen and Zimmermann wore flip-flops, shorts, and jeans to school. Plaintiff asserts that wearing such apparel violates the school's business casual dress code. Plaintiff further asserts that administrators would not let Plaintiff wear shorts on golf meet days when Plaintiff coached the team during the 2006-2007 school year. Mullen and Zimmermann deny that they violated the school's dress code. See d/e 30 at 19; d/e 31 at 34.

In addition to the dress code violations, Plaintiff complained to administrators about Mullen and Zimmermann taking long lunches and coming to school late and leaving school early. Superintendent Gillum acknowledged that members of the guidance faculty were taking long lunches and that he had stopped the practice. See d/e 27 at 7.

In response to Plaintiff's complaints about Mullen and Zimmermann to administrators during the 2007-2008 school year, Mullen and Zimmermann told Plaintiff that Plaintiff was not an administrator, and therefore, his job duties did not include enforcing faculty rules and policies. See d/e 42 at 7. Mullen also told Plaintiff that reporting co-workers works both ways and that she would report Plaintiff to Glenwood High School administrators if Plaintiff violated any rules. See d/e 42 at 9.

C. Plaintiff Received a Positive Performance Evaluation Before Tensions In the Guidance Department Reached Their Pinnacle During the 2007-2008 School Year

In March 2007, Defendant performed an evaluation of Plaintiff. See d/e 38, Ex. 1 at 64-74. The evaluation judged Plaintiff on attendance, professionalism, program planning, performance responsibilities, specialized services, and public relations. Plaintiff could receive a rating of unsatisfactory, effective, or excellent as an overall rating and for each of the categories. Each category also had a space for comment.

Plaintiff received an overall evaluation of excellent and excellent ratings for attendance, program planning, performance responsibilities, specialized services, and public relations. However, Plaintiff received an effective rating for professionalism. Further, under the professionalism category, Plaintiff's evaluation states that:

While Mr. Penk is effective, there are two areas that need to be addressed: he needs to work on developing better relationships with the faculty, tapping into their expertise, listening and becoming more supportive, even if he disagrees with them. He also needs to work on his skills in controlling situations so that conversations don't become confrontational.

See d/e 38, Ex. 1 at 67.

D. Plaintiff Acted Subordinate To His Immediate Supervisor Todd Graba Before Superintendent Gillum Decided To Recommend Plaintiff's Transfer to the Board of Education

In February 2008, Plaintiff's immediate supervisor, Todd Graba, asked Plaintiff to provide the number of special education accommodations that would be required for the second day of the Prairie States Achievement Examination. Plaintiff refused to complete this task, stating instead, "I will not have time to do this. Cheryl is the department head." See d/e 22, Ex. 3 at 36.

Cheryl Mullen completed the task, and Graba sent Mullen an email thanking her for being professional and helping the team. Plaintiff had been copied on the email and responded with his own email to Mullen, Principal Cunningham, and Graba. The email said "Nice Jab." See d/e 22, Ex. 3 at 36.

The disciplinary document that chronicles this incident was completed by Todd Graba and dated February 4, 2008. The document states that Plaintiff was "insubordinate with a repeated act that has been discussed with him before by myself and Mr. Cunningham." See d/e 22, Ex. 3 at 37. Presumably, "insubordinate with a repeated act" refers to Plaintiff not following directives from superiors. The document also states that Plaintiff "must comply with directives that do not violate the contract and that [Plaintiff] does not determine what is his work or anyone elses." See d/e 22, Ex. 3 at 37.

E. Defendant Provides Affidavits To Support Allegations that Plaintiff Acted Unprofessionally Toward Others At Glenwood High School

Defendant has attached Affidavits from Becky Nieman, the Sangamon Area Special Education District Administrator for Glenwood Middle School and Glenwood High School in 2007-2008; Billie Jarvis-Freeman, English Instructor at Glenwood High School since 2001; Marni Countryman, social worker at Glenwood High School since the 1996-1997 school year; and Brian Spring, a senior at Glenwood High School during the 2005-2006 school year. See d/e 22, Ex. 5. These Affidavits document Plaintiff's unprofessional behavior toward others while serving as a guidance counselor at Glenwood High School.

Becky Nieman encountered Plaintiff at individual education plan meetings for students with special needs and in parent conferences after issues had arisen between the District and a special education student's parents. See d/e 22, Ex. 5 at 1-2. Nieman alleges that at a meeting on December 17, 2007, Plaintiff conducted himself unprofessionally in front of a student and parent when Plaintiff, in an argumentative tone and louder voice, "asked the student what he wanted from his education- just being able to pass and get his diploma or did he really want to learn?" See d/e 22, Ex. 5 at 3. Nieman states that Plaintiff's conduct frustrated the student and upset the mother who "herself... had been crying during the meeting." See d/e 22, Ex. 5 at 3.

Further, after the parent had composed herself, Plaintiff "continued in making his comments and made a statement about how [the student] was a man and in a man's world these are the things the student needs to face. It was at this time that Mrs. Nieman ended the... meeting...." See d/e 22, Ex. 5 at 3. Nieman sent a letter dated December 17, 2007 to Plaintiff's supervisor, Todd Graba, regarding Plaintiff's unprofessional conduct during the meeting. See d/e 22, Ex. 5 at 3-4. Nieman also told Graba she would not meet with Plaintiff alone in the future. See d/e 22, Ex. 5 at 2.

Jarvis-Freeman alleges that in Spring 2006, a student, Brian Spring, arrived at Jarvis-Freeman's advanced placement English class upset by an altercation involving Plaintiff. See d/e 22, Ex. 5 at 5-6. Jarvis-Freeman requested a meeting with Kristie Zimmermann, Brian Spring's guidance counselor. After the meeting with Zimmermann, Jarvis-Freeman alleges that Plaintiff pulled Jarvis-Freeman into Plaintiff's office, closed the door, and said that "he had every fucking right' to yell or curse at a student because the students curse at them." See d/e 22, Ex. 5 at 6. Jarvis-Freeman says that she informed Principal Cunningham of the incident and told Cunningham that in the future she would not meet with Plaintiff alone. See d/e 22, Ex. 5 at 6.

Brian Spring's Affidavit also describes the incident that prompted the events set forth in Jarvis-Freeman's Affidavit. Spring states that he had flipped off the driver of a vehicle who had been tailgating Spring. See d/e 22, Ex. 5 at 10-12. Spring says that the driver followed Spring to a Chatham fast-food restaurant, approached Spring's window in the parking lot, and proceeded to yell and curse at Spring. At this time, Spring recognized that the driver was Plaintiff.

Later, at Glenwood High School, Spring says that Plaintiff saw Spring point at Plaintiff. Plaintiff approached Spring, grabbed him by the collar, asked him if he thought this was funny, and took Spring to Principal Cunningham's office. Plaintiff told Principal Cunningham that Spring had flipped Plaintiff off. Cunningham dismissed the event because it had occurred off of school property. Spring states in his Affidavit that Plaintiff responded by threatening to "rip [Spring's] fucking head off.'" See d/e 22, Ex. 5 at 12.

Finally, Countryman, the social worker at Glenwood High School, states in her Affidavit that she met with Plaintiff at least twice a week in her role of serving special education students at Glenwood High School. See d/e 22, Ex. 5 at 7-9. Countryman describes Plaintiff as arrogant toward students and parents and states that she recalls at least ten different occasions when a special education student would not go to Plaintiff without ...

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