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Aberman v. Board of Education of City of Chicago

United States District Court, N.D. Illinois, Eastern Division

March 17, 2017

MARCIE ABERMAN, Plaintiff,
v.
BOARD OF EDUCATION OF THE CITY OF CHICAGO and SUSAN A. LOFTON, Defendants.

          MEMORANDUM OPINION AND ORDER

          Robert M. Dow, Jr. United States District Judge.

         Plaintiff Marcie Aberman brings this action against Defendants Board of Education of the City of Chicago and Susan Lofton alleging age discrimination in violation of the Age Discrimination in Employment Act ("ADEA") and the Illinois Human Rights Act ("IHRA") against the Board (Count I); disability discrimination in violation of the IHRA and the Americans with Disabilities Act ("ADA") against the Board (Count II); violations of the Rehabilitation Act § 504 against the Board (Count III); violations of the Family Medical Leave Act ("FMLA") against the Board and Lofton (Count TV); and breach of contract against the Board (Count VII).[1] Currently before the Court are the parties' cross-motions for summary judgment [111] and [129]. For the reasons stated below, the Court grants Defendant's motion for summary judgment on Plaintiffs federal claims in Count I through Count IV. In view of that disposition of the federal claims, Plaintiffs remaining state law claims are dismissed without prejudice. The Court will enter a final judgment and close the case.

         I. Background

         The following facts are drawn primarily from the parties' Local Rule 56.1 statements, [113], [129, Exhibit 56], [129, Exhibit 55], and [136]. Plaintiff, a former high school mathematics teacher, was given an "unsatisfactory" performance rating by a new principal, Defendant Susan Lofton, and was then terminated from her tenured position and placed in the Reassigned Teachers Pool. Plaintiff has an auditory impairment and was over the age of forty at the time of reassignment.

         A. Local Rules

         As a preliminary matter, the Court notes that Local Rule 56.1 requires a party moving for summary judgment to submit a statement of material facts as to which the movant contends there is no genuine issue and entitles the movant to judgment as a matter of law. Each party opposing a motion for summary judgment is then required to file "any opposing affidavits and other materials referred to in [Federal Rule of Civil Procedure 56(e)]" and a "concise response" to the movant's statement of facts containing "any disagreement, specific references to the affidavits, parts of the record, and other supporting materials." L.R. 56.1(b)(1), (3). "A general denial is insufficient to rebut a movant's factual allegations; the nonmovant must cite specific evidentiary materials justifying the denial." Make v. Sanford, 191 F.R.D. 581, 584 (N.D. 111. 2000). Local Rule 56.1(b)(3)(C) is not satisfied by "purely argumentative denials, " id., or "evasive denials that do not fairly meet the substance of the material facts asserted, " Bordelon v. Chi. Sch. Reform Bd. of Trs., 233 F.3d 524, 528 (7th Cir. 2000). "The purpose of the 56.1 statement is to identify for the Court the evidence supporting a party's factual assertions in an organized manner[;] it is not intended as a forum for factual or legal argument." Make, 191 F.R.D. at 585.

         Plaintiffs Response to Defendants' Statement of Facts [129, Exhibit 56] does not comply with these requirements. Many of Plaintiffs "concise responses" do not directly address Defendants' statement of facts but rather amount to lengthy recitations of unrelated allegations. [See, e.g., 129, at ¶ 19.] Additionally, many of Plaintiff s denials assert facts without citations to the record, [see, e.g., ¶¶ 4, 9, 20], cite exhibits which do not support the denial, [see, e.g., ¶¶ 30, 33], or contain blank spaces with incomplete citations, [see, e.g., ¶ 9 ("See PI. Resp. to paragraph ___. Further Denied to the extent that Darroch, or any other administrator, actually demonstrated a willingness or ability to address student behavior issues. ___. Otherwise Denied.").] Moreover, some of the exhibits that Plaintiff cites are not in the record, [see, e.g., Exhibit 2; Group Exhibit 12], or are allegedly "included on [sic] disk and filed under seal, " [see, e.g., Exhibit 51; Group Exhibit 8; Group Exhibit 10; Group Exhibit 11], yet said disk and courtesy copies of Plaintiff s filings were not delivered to the Court despite the Court's explicit instructions that courtesy copies should be delivered within 24 hours of filing and the Courtroom Deputy's follow-up request to Plaintiffs counsel.

         Further, Exhibit 3, which Plaintiff frequently cites, is purportedly an "affidavit of Marcie F. Aberman." However, the document is not sworn, signed, or dated. [129, Exhibit 3, at 10.] An affidavit is admissible in a summary judgment proceeding only if it is sworn to before an officer authorized to administer an oath, such as a notary public. See Pfeil v. Rogers, 757 F.2d 850, 859 (7th Cir. 1985). Since Exhibit 3 is not sworn to before an officer authorized to administer an oath, it is not an admissible affidavit. Under 28 U.S.C. § 1746, an unsworn declaration which is dated and signed by the declarant "under penalty of perjury" and verified as "true and correct" may be used in lieu of a sworn affidavit to support or respond to a motion for summary judgment. See DeBruyne v. Equitable Life Assur. Soc'y, 920 F.2d 457, 471 (7th Cir. 1990). Although Exhibit 3 contains the language "I certify under penalty of perjury that the facts stated herein are true and correct, " it is not signed or dated, and thus is not admissible as an unsworn declaration under 28 U.S.C. § 1746.[2] See Trapaga v. Central States Joint Bd. Local 10, 2007 WL 1017855 (N.D. 111. March 30, 2007).

         Because of these shortcomings in Plaintiffs filings, where Plaintiff responds to Defendants' Rule 56.1 Statement of Facts with an unsupported denial, a denial allegedly supported by an exhibit that is inadmissible or not in the record, an argument, or a legal conclusion, the Court will not consider that response, and Defendants' statement of fact will be deemed admitted. See L.R. 56.1(a), 56.1(b)(3)(B); see also Malec, 191 F.R.D. at 584; Moore-Fotso v. Bd. o/Educ. of the City of Chicago, 2016 WL 5476235, at *2 (N.D. 111. Sept. 29, 2016). Similarly, where Plaintiffs Rule 56.1(c) Statement of Additional Facts [129, Exhibit 55] contains unsupported assertions of fact, the statements will not be considered. Although the Court will exercise its discretion in the direction of leniency and consider the portions of Plaintiffs statements and responses that arguably meet the requirements of the local and federal rules, Modrowski v. Pigatto, 712 F.3d 1166, 1169 (7th Cir. 2013) (making clear that, although district courts have discretion to require strict compliance with Rule 56.1, "[i]t does not follow * * * that district courts cannot exercise their discretion in a more lenient direction"), the Court notes that Plaintiff is not left with many facts to stand on. See Gross v. Town of Cicero, III, 619 F.3d 697, 702 (7th Cir. 2010) (striking the parties' factual assertions that lacked direct citation to easily identifiable support in the record and explaining that "Judges are not like pigs, hunting for truffles buried in [the record]." (citation and internal quotation marks omitted)).

         The Court also notes that Plaintiffs brief improperly cites to raw record materials rather than to its Local Rule 56.1 statement, which is a blatant violation of the local rules. This violation of Local Rule 56.1, standing alone, is enough to deny Plaintiffs partial motion for summary judgment [129]. See Sledge v. Bellwood Sch. Dist. 88, 2011 WL 2457920, at *2 (N.D. 111. June 17, 2011) (denying summary judgment motion based on movant's violation of Local Rule 56.1); Daoust v. Abbott Labs., 2006 WL 2711844, at *4 (N.D. 111. Sept. 19, 2006) ("Citing directly to the record in the memorandum statement of facts, as [the movant] does here, rather than citing to its 56.1(a)(3) statement, negates the purpose of the summary judgment exercise."). However, the Court will exercise leniency and consider the merits of Plaintiff s motion.

         Finally, the Court notes that despite having been granted several extensions of time to file a reply brief and the Court's admonition that given the well-documented history of delay in this case, no further extensions would be granted absent the most extreme of emergencies, Plaintiff has failed to file a reply brief. Thus, the Court will decide the parties' cross-motions for summary judgment without Plaintiffs reply brief. See Raymond v. Ameritech Corp., 442 F.3d 600, 606 (7th Cir. 2006) (district judge acted within his discretion by not excusing party's delay in filing response to summary judgment motion where case had dragged on for over one year, party had already obtained one extension to file response, and court gave clear notice of deadline).[3]

         B. The Facts

         Turning to the facts of the case, Plaintiff worked as a mathematics teacher at Nicholas Senn High School ("Senn") from September 2005 through July 8, 2011. [113, at ¶ 3.] Defendant Susan Lofton was Principal of Senn from May 3, 2010 through July 20, 2015 and was Plaintiffs direct supervisor. [Id. at ¶ 4.] During the 2010-2011 school year, Assistant Principals ("A.P.") David Darroch and Carter Carey assisted Principal Lofton in the administration of Senn. [id.]

         1. Plaintiffs Performance for the 2010-2011 School Year

         During the 2010-2011 School Year, Plaintiff was observed three times by Defendant Lofton (November 22, 2010, February 2, 2011, and March 15, 2011) and once by A.P. Darroch (March 14, 2011). [See id. at ¶ 8.] A.P. Carey also observed Plaintiff during his periodic teacher observations. [Id. at¶ 11.]

         a. Defendant Lofton's Observations

         On November 22, 2010, Defendant Lofton conducted a formal observation of Plaintiff s seventh period algebra class. [Id. at ¶ 12.] A formal observation lasts a full class period and includes an examination of lesson plans, unit maps, gradebooks, and any evidence the teacher wants to provide. [Id.] During the observation, Defendant Lofton took notes and provided written feedback using an observation checklist. [Id.] On the Classroom Teacher Visitation Form, Defendant Lofton checked the "weakness box" next to fourteen of the provided performance criteria. [Id.] The weaknesses she observed included pedagogy issues, such as Plaintiffs failure to apply contemporary principles of learning theory and teaching methodology and failure to establish positive learning expectation standards for all students. [Id.] Defendant Lofton also observed weaknesses in basic teacher duties, such as Plaintiffs failure to keep current records of pupils' achievements and maintain an accurate gradebook, and in poor classroom management, which caused Plaintiffs students to be off task and to have private conversations during the lesson. [id.] According to Defendant Lofton, Plaintiff also failed to adequately communicate the academic progress, attendance, and conduct of students to their parents and failed to initiate appropriate conferences with parents and administrators. [Id.] Defendant Lofton met with Plaintiff on December 2, 2010 for a post-observation conference and provided her with a list of suggestions for improvement. [Id. at ¶ 13.] On February 22, 2011, Defendant Lofton conducted another observation of Plaintiff s seventh period algebra class and did not see any improvement in Plaintiffs teaching performance. [Id. at ¶ 14.]

         On March 15, 2011, Defendant Lofton conducted another formal observation of Plaintiffs eighth period algebra class. [Id. at ¶ 21.] She again took copious notes and provided written feedback on an observation checklist and during the post-observation conference. Defendant Lofton observed that Plaintiff exhibited no improvement in classroom management, did not differentiate instruction, did not implement vocabulary strategies, and that the rigor of the lesson was too low. She also noted that Plaintiff was not using the recommendations she had given to Plaintiff during previous observations. During the lesson, she found that Plaintiff exhibited student engagement and pacing issues and did not respond to students; the classroom was disruptive with one third to more than one half of students off task at any given moment; and the lesson was teacher-centered and students did not try to do the work because they had learned that Plaintiff would do it for them. [id.] On the Classroom Teacher Visitation Form, Defendant Lofton checked the "weakness box" next to fifteen of the provided performance criteria, noting pedagogical, organizational, classroom management, and student-relationship weaknesses. [See id] Defendant Lofton observed that there was no improvement in Plaintiffs teaching performance between the November 22, 2010 and March 15, 2011 observations. [Id. at ¶23.] On March 16, 2011, Defendant Lofton held a post-observation conference during which she gave Plaintiff a list of suggested improvements. [Id. at ¶ 22.]

         Plaintiff testified in her deposition that she agreed with the weaknesses identified by Defendant Lofton but that Defendant Lofton had "used the worst class to do the evaluation on." [See id. at ¶ 24; id, Exhibit B, 102:23-104:13; 244:6-12.] However, Plaintiff also testified that during the 2010-2011 school year, she never complained to Defendant Lofton about the students in her algebra class, which is the class that Defendant Lofton observed. [Id. at ¶ 7; id, Exhibit B, 82:17-21.] Plaintiff also agreed that she had trouble managing the students in her seventh and eighth period algebra classes. [Id. at ¶ 25.]

         b. Assistant Principals' Observations

         Defendant Lofton was not the only administrator who noticed Plaintiffs poor teaching performance. On March 14, 2011, A.P. Darroch observed Plaintiffs seventh and eighth period algebra classes. [Id. at ¶ 16.] He took nine pages of notes during the observation, noted that he was concerned by Plaintiffs subpar teaching performance, and checked the "weakness" box next to eleven of the evaluation criteria. [Id.] Like Defendant Lofton, A.P. Darroch noted that Plaintiff failed to apply contemporary principles of learning theory and teaching methodology and failed to show evidence of student performance and progress. [Id.] He observed several issues related to Plaintiffs classroom managements and relationships with her students, including (1) an excessive rate of off-task behavior, (2) a negative classroom climate impacting teacher-student relationships, (3) Plaintiffs failure to exhibit an understanding and respect for students as individuals, and (4) Plaintiffs use of a critical tone with students. [id.]

         In his view, Plaintiffs "punitive and negative classroom management style * * * contribut[ed] to discipline problems" and suggested that Plaintiff "consider positive tone and reinforcements." [Id.] According to A.P. Darroch, during the lesson, Plaintiff relied heavily on teacher-led instruction and demonstration and did not allow students to "own the lesson." [Id.] His notes indicate that Plaintiff engaged one student in setting up a formula. [129, Exhibit 56, at ¶ 16.] However, A.P. Darroch explained that Plaintiff did all the math problems and and did not involve or engage students. [113, at ¶ 16.] He noted that Plaintiff failed to address numerous student questions and requests. [Id.] After the March 14, 2011 classroom visit, A.P. Darroch spoke with Defendant Lofton about his observations and expressed his concern regarding Plaintiffs ability to manage her classroom and to effectively teach her students. [Id. at ¶ 20.]

         On March 16, 2011, A.P. Darroch had a discussion with Plaintiff about his observation and presented suggestions for improvement. [Id. at ¶ 17.] Plaintiff testified in her deposition that she agreed with A.P. Darroch's notes on the March 14, 2011 Classroom Visitation Form that stated: "overreliance on teacher-led instruction / demonstrate or provide for greater student ownership / higher-order thinking." [Id. at ¶ 17.] Plaintiff further testified that she did not know if she believed that A.P. Darroch wanted her out of Senn and that she did not have any problems with him. [See id. ¶ 19; id. Exhibit B, 272:5-12.]

         A.P. Carey periodically conducted teacher observations and visited classrooms while class was in session. [Id. at ¶ 11.] He observed that Plaintiff did not establish a positive learning culture in her classroom, often yelled at her students, had a chaotic classroom with students yelling across the classroom, getting up from their seats and moving around without permission, and openly defying Plaintiff. [id.] He believed that Plaintiff was deficient in classroom management and that this had a negative impact on instruction. [Id.] Additionally, students complained to A.P. Carey that they were not learning anything from Plaintiff. [Id.]

         c. Plaintiffs Unsatisfactory Rating

         Defendant Lofton gave Plaintiff an unsatisfactory rating on March 21, 2011. At the same time, she also presented Plaintiff with a remediation plan, per Board policy and the Collective Bargaining Agreement ("CBA") between the Board and the Chicago Teachers Union. [Id. at ¶ 32.] According to Defendant Lofton, she created the remediation plan for Plaintiff in hopes that her performance would improve over the course of the following year. [Id.] Plaintiff alleges that by March 30, 2011, there was a posting for an immediate opening in the Senn mathematics department and thus Defendant Lofton had started the process of hiring Plaintiffs replacement. [129, Exhibit 56, at¶ 32; see also 129, Exhibit 14.]

         2.Fitness for Duty Examination and FMLA Leave

         a. Plaintiffs Auditory Impairment

         Plaintiff was diagnosed with hearing loss as a child. [113, at ¶ 5.] Plaintiff wore a hearing aid as a child, but the material would irritate her ear. [Id., Exhibit B (Aberman Deposition), 123:6-8, 124:9-16.] A medical specialist suggested that Plaintiff use a hearing aid prior to the 2010-2011 school year, but Plaintiff never wore a hearing aid when she taught at Senn. [Id. at ¶ 5.] Plaintiff never told Defendant Lofton that she had a hearing impairment and did not ask Defendant Lofton, or any previous principals, for an accommodation for her hearing disability. [Id. at ¶ 6.] The first time that Plaintiff informed anyone at the Board that she had an auditory impairment was when she requested an accommodation in 2011. [Id.] Plaintiff alleges that because she had this hearing impairment since early childhood, her voice "evidences an obvious difference that is readily associated with the hearing impairment." [129, Exhibit 55, at ¶26.]

         b. Events Leading Up to Fitness for Duty Examination

         During post-observation conferences, Defendant Lofton asked Plaintiff if she heard what her students were saying during class (such as asking for help or openly talking about their social lives) and why she did not respond to them. [Id. at ¶ 34.] Plaintiff responded that she could hear them but that she wanted to move on in the lesson. Plaintiff asserted that the problem was that the students were troublesome and difficult to manage. Defendant Lofton asked Plaintiff what additional assistance she might need aside from the list of suggestions presented to her. Plaintiff responded that she did not need anything and that she would work on the listed suggestions. [Id.]

         On or about January 11, 2011, two school-wide announcements were made on Senn's intercom system instructing teachers to keep students in the classroom until further notified because it was a "high-risk" day. [Id. at ΒΆ 35.] A.P. Carey informed Defendant Lofton that he found one of Plaintiff s students in the hall during class time that day. Defendant Lofton issued Plaintiff a Cautionary Note, which is a non-disciplinary written statement given to an employee advising her that the described misconduct is unacceptable and will lead to formal discipline if repeated. Defendant Lofton alleges that she spoke with ...


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