Opinion
No. 99 C 2127
July 10, 2002
MEMORANDUM OPINION AND ORDER
Plaintiff Peter T. Gillo ("Gillo") filed this action against Defendant Chicago Reform Board of Education (the "Board") alleging retaliation in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq., as amended the Civil Rights Act of 1991, and 42 U.S.C. § 1983 and employment discrimination in violation of the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12101,et seq. The Board now moves for summary judgment. For the reasons set forth below, the Board's motion is granted.
BACKGROUND
Unless otherwise noted, the following facts are undisputed. Gillo, who is deaf, was hired by the Board in September 1979 to work as a teacher for the hearing impaired at Whitney Young High School. In 1993, the Board changed the name of the hearing impaired program and ordered Gillo to reapply for a teaching position in the newly renamed program. Gillo was not hired for the restructured teaching position and as a result he filed an employment discrimination suit in another federal court in this district against the Board.
Gillo was transferred by the Board to Mahalia Jackson School as a teacher for the deaf and hard of hearing for 1993 through 1994. In 1994, Gillo was hired by Principal Deborah Clark ("Clark") to fill an open teaching position at Mark Skinner Elementary School ("Skinner Elementary"). Gillo's job performance rating at Skinner Elementary was "superior" for each of the years he taught there.
In the Spring of 1997, DAMMCO, a private consultant group, audited the Chicago Public Schools that had special education programs, including Skinner Elementary. The audit reviewed finances, teacher-pupil ratios and other factors. DAMMCO recommended that Skinner Elementary close seven teaching and staff positions as unnecessary given the number of students and the needs of the special education students being served. Clark appealed the recommendation to the Board. On May 7, 1997, the Board instructed Clark to close two vacant staff positions, three tilled staff positions and seven teaching positions. The decision of which positions to close was based strictly on seniority, not job performance, in accordance with the Board policy on reassigned teachers, and the Board's contract with the teachers' union. The seniority determinations were made by the Office of Recruitment and Staffing, of the Department of Human Resources and sent to Clark. On June 24, 1997, Clark prepared and returned the "Position Close" forms for each closed position to the Board Office. Among those positions was Gillo's. The Board was granted summary judgment in Gillo's previous lawsuit against them on July 30, 1997.
Teachers whose positions were eliminated in June 1997 were given the status of "reassigned teachers". Letters and job search information was sent to them in August 1997. Gillo was also given lists of vacancies, application information and some level of job search assistance from the Department of Human Resources. Gillo submitted a number of applications to various principals for their consideration. Assuming an applicant had appropriate certification, all teacher hiring decisions were within the sole discretion of the school principals. The Board could not place a teacher in any vacancy. Gillo went on a number of interviews, but none of the principals hired him.
Gillo admits in his response to the Board's 56.1 statement that, at a minimum, he was given assistance in filling out applications, scheduling interviews and was provided other assistance. The Board's motion to strike paragraphs 7, 8 and 10 of Gillo's statement of facts in opposition to the Board's 56.1 statement is granted as these paragraphs dispute his own testimony and create sham issues of fact. Bank of Illinois v. Allied Signal Safety Restraint Systems, 75 F.3d 1162, 1168 (7th Cir. 1996).
DISCUSSION
I. Standards for Summary Judgment
Summary judgment is proper if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c). The record "and all reasonable inferences drawn from it [are to be viewed] in the light most favorable to the party opposing the motion." Bisciglia v. Kenosha Unified Sch. Dist. No. 1, 45 F.3d 223, 226 (7th Cir. 1995).
II. Retaliation Claim
Gillo's Complaint asserts that the Board discriminated against him in retaliation for a prior lawsuit over alleged discrimination by the Board. Title VII prohibits, inter alia, an employer from discriminating "against any of his employees . . . because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter." 42 U.S.C. § 2000e-3 (a). In order to establish a prima facie case of retaliation, Gillo must establish that he engaged in a protected expression and that as a result he suffered an adverse employment action by his employer. Stone v. City of Indianapolis Public Util. Div., 281 F.3d 640, 642 (7th Cir. 2002). The Board does not dispute that Gillo engaged in a protected expression or that he suffered an adverse employment action, but it contends that Gillo fails to establish that the adverse employment action was the result of the protected expression. The Court agrees that Gillo has failed to produce any evidence beyond his own conjecture that his position was eliminated or he was not hired for another position because of his lawsuit. Without evidence to support the fact that the adverse employment action was the result of his protected expression, this claim cannot survive summary judgment.
III. Americans with Disabilities Act Claims
Gillo also asserts that the Board discriminated against him by terminating him because of a disability in violation of the ADA. The ADA provides in pertinent part that:
no covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to . . . the . . . discharge of employees[.]42 U.S.C. § 12112 (a) (1998).
There are two types of ADA disability discrimination claims: (1) disparate treatment claims, alleging that a qualified individual with a disability was treated differently than non-disabled employees due to her disability, see Sieberns v. WalMart Stores, Inc., 125 F.3d 1019, 1021-22 (7th Cir. 1997), and (2) failure to provide a reasonable accommodation claims, alleging that the employer did not make a reasonable accommodation for the known physical or mental limitations of an otherwise qualified individual. Id. at 1022. Here, Gillo has raised a disparate treatment type of disability discrimination claim.
"As with other federal anti-discrimination statutes, an ADA plaintiff may prove disparate treatment either by presenting direct evidence of discrimination, or she may prove it indirectly using the McDonnell Douglas burden-shifting method." Hoffman v. Caterpillar, Inc., 256 F.3d 568, 572 (7th Cir. 2001). Here, Gillo solely attempts to prove discrimination through the indirect burden-shifting method. The mechanics of proving discrimination pursuant to the indirect burden-shifting analysis are well-settled:
If the plaintiff establishes a prima facie case, there is a rebuttable presumption of discrimination and the employer must offer a legitimate, nondiscriminatory or non-retaliatory reasons for the adverse employment action. If the employer gives a legitimate, nondiscriminatory reason for the adverse employment action, the plaintiff must prove this reason is mere pretext for discrimination.Payne v. Milwaukee County, 146 F.3d 430, 433 (7th Cir. 1998).
Courts need not, however, labor through the entire burden-shifting exercise in every case. Instead, "[w]hen the defendant has proffered an explanation for termination that the court determines to be non-pretextual, the court may avoid deciding whether the plaintiff has met his prima facie case and instead decide to dismiss the claim because there is no showing of pretext." Abioye v. Sundstrand Corp., 164 F.3d 364, 368 (7th Cir. 1998). The Court finds that this is such a case and, therefore, will turn directly to the pretext analysis.
Gillo has presented no evidence to prove that the Board's proffered reason for closing his position was pretextual. The Board asserted that it closed a certain number of positions by seniority based on the recommendation of an independent auditor. Again, Gillo merely provides his own conspiracy theories unsupported by any evidence in the record. This is insufficient to show pretext and therefore summary judgment on this claim must be entered.
CONCLUSION
For the foregoing reasons, the Board's motion for summary judgment is granted.