In the
United States Court of Appeals
For the Seventh Circuit
Nos. 10-3844 & 11-1104
V ERONICA D ASS,
Plaintiff-Appellant,
v.
C HICAGO B OARD OF E DUCATION, et al.,
Defendants-Appellees.
Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 08 C 6045—David H. Coar, Judge.
A RGUED O CTOBER 25, 2011—D ECIDED A PRIL 12, 2012
Before E ASTERBROOK, Chief Judge, H AMILTON, Circuit
Judge, and M YERSCOUGH, District Judge.
M YERSCOUGH, District Judge. Veronica Dass brought
this action against Paula Jeske, the Chicago Board of
Of the Central District of Illinois, sitting by designation.
2 Nos. 10-3844 & 11-1104
Education (Board), and the Chicago Public Schools1 (CPS)
after the Board accepted Jeske’s recommendation that
Dass not be renewed for the 2007-2008 school year and
sent Dass notice that her employment would terminate
on August 24, 2007. Dass alleged that: (1) the Board
and CPS discriminated against her on the basis of her
national origin and retaliated against her in violation
of Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§§ 2000e, et seq. (Title VII); (2) the Board and CPS dis-
criminated against her in violation of the Americans with
Disabilities Act of 1990, 42 U.S.C. §§ 12101, et seq.; and
(3) Jeske discriminated against her based on her
national origin in violation of 42 U.S.C. § 1981. Dass also
brought various state-law claims.
The district court granted defendants’ motion for sum-
mary judgment with respect to the federal claims and
declined to exercise supplemental jurisdiction over
the state-law claims. Dass appeals only from the district
court’s entry of summary judgment against her on her
claims of national origin discrimination under Title VII
and § 1981. For the reasons that follow, we affirm.
BACKGROUND
The district court compiled a detailed and comprehen-
sive factual history of this case which can be accessed
1
The Chicago Public Schools is not a suable entity. Therefore,
we amend the caption of this case to reflect that the Chicago
Board of Education is the proper justiciable party.
Nos. 10-3844 & 11-1104 3
at Dass v. Chicago Pub. Sch., No. 08 C 6045, 2010 WL 4684034
(N.D. Ill. Nov. 12, 2010). Neither party contends the
district court’s recitation of the facts is inaccurate.2 More-
over, while Dass proceeded under both the direct
and indirect methods of proof before the district court,
Dass’s attorney stated during oral argument that Dass
was “not proceeding under the indirect method here.”
Dass’s submissions to this court on appeal confirm her
attorney’s representation as those submissions make
no mention of the indirect method and only address
her direct method theory. Dass has thus abandoned her
indirect method theory. See Robin v. Espo Eng’g Corp., 200
F.3d 1081, 1088 (7th Cir. 2000) (claim pursued before
district court but not raised in briefs submitted on
appeal was abandoned).
Dass taught a fifth-grade class at Pablo Casals Elemen-
tary School (Casals) during the 2005-2006 school year.
Because of an error by the Board’s Human Resources
Department, Dass was displaced after that school year
when Casals lost teaching positions due to budget con-
straints. After Dass won her grievance, the Board rein-
stated her and she was assigned to teach a seventh-grade
class at Casals even though a third-grade class was
open. Dass requested and received medical leave in
December 2006. She did not return the rest of the school
2
While Dass has not argued the district court’s recitation of
the facts was incorrect, Dass maintains the district court
ignored the requirement of Rule 56 of the Federal Rules of
Civil Procedure that the evidence be viewed in the light
most favorable to the nonmovant.
4 Nos. 10-3844 & 11-1104
year. In the spring of 2007, Jeske recommended to the
Board that Dass be non-renewed for the 2007-2008
school year. The Board accepted the recommendation
and informed Dass that her employment would
terminate in August 2007.
Dass is very specific as to what evidence she claims
is direct evidence of national origin discrimination. Be-
cause we assume the parties’ familiarity with the
district court’s opinion, and for the sake of brevity, we
recount only those facts surrounding Dass’s proposed
direct evidence of discrimination and those additional
facts necessary to our analysis of Dass’s direct method
theory and our holding.
I. Facts Predating the 2005-2006 School Year
Dass was born in Hyderabad, India. The Board first
hired Dass as a teacher in 1991. In 2002, Dass was hired
at Casals. At the time the Board hired Dass to teach at
Casals, Dass had a Type 03 teaching certificate from the
State of Illinois, which allowed her to teach any grade
between kindergarten and eighth grade.
Dass taught second grade during the 2002-2003 school
year, and third grade during the 2003-2004 and 2004-
2005 school years. Aleen Donaldson was the principal at
Casals during this time. While Donaldson rated Dass’s
overall performance on her annual teacher evalua-
tions during these years as “excellent,” Donaldson never
recommended Dass for tenure. Donaldson testified at
her deposition that Dass “was never really a strong disci-
Nos. 10-3844 & 11-1104 5
plinarian.” Donaldson testified Dass was not strict
or consistent in her discipline. Donaldson thought it
was possible to be a strong teacher, but not a strong
disciplinarian.
Donaldson retired after the 2004-2005 school year.
However, before Donaldson retired, she non-renewed
Dass for the 2005-2006 school year. Dass lost her teaching
position but reapplied to teach at Casals for the 2005-
2006 school year. Dass was rehired and assigned to
teach the fifth grade. Casals had an interim principal
for several weeks at the beginning of the 2005-2006
school year until Jeske became principal in September 2005.
II. Jeske’s 2005-2006 Evaluations of Dass
Jeske conducted three formal observations of Dass’s
performance in the classroom during the 2005-2006 school
year. Those observations took place on January 10, April
28, and May 16, 2006.
After Jeske’s January 10, 2006 observation of Dass, Jeske
checked the “strength column” in 27 out of 30 applicable
categories on the Classroom Teacher Visitation Form.
While the district court referred to Jeske’s evaluation
of Dass’s performance as “generally positive,” Jeske’s
deposition testimony shows that a checkmark in the
strength column did not necessarily mean the teacher
being observed was doing well in that category. Jeske
testified a checkmark on the left side of the strength
column meant the teacher was “doing a real good job in
all those areas.” However, a checkmark on the right side
6 Nos. 10-3844 & 11-1104
of the strength column indicated “[t]hat you are not
doing so well in that. You need to work on it.” Many of
the checkmarks in the “strength column” appear to be
on the right side of the column on the performance form
for Dass. Jeske also noted on the form that Dass needed
“to improve classroom management so lessons are
actively participated in by students.”
The Classroom Teacher Visitation Form that Jeske
completed following the April 28, 2006 observation
of Dass’s classroom reflected far more negatively on
Dass’s performance than the January 2006 review did.
Jeske marked many more weaknesses than before. Addi-
tionally, Jeske noted that the “English lesson on sen-
tences is fragmented” and that “kids were shooting
rubber bands, dancing, talking, out of seats, drawing
[and] brushing hair.”
Jekse observed Dass on May 16, 2006, and gave Dass
another negative review. Jeske’s notes following this
observation indicated there were 22 children present in
class, but only 7 were following along with Dass, that
three boys were up throwing paper balls, a boy and girl
were hitting each other, one boy was fanning himself
with a book, two boys were making paper animals, one
boy was sitting backwards on his chair, and one girl
was doing her hair. Dass did not reprimand any of them.
Finally, Jeske gave Dass an “unsatisfactory” rating on
her annual evaluation at the conclusion of the 2005-2006
school year. Jeske thought that Dass had poor classroom
management and that most of the students were off task
during class. Moreover, Dass frequently had to refer
Nos. 10-3844 & 11-1104 7
students for discipline. Finally, Jeske noted that Dass
did not follow suggestions made by the administration.
Dass admitted she experienced difficulty in managing
and disciplining students. However, Dass denied that her
disciplinary problems were more abundant than those
experienced by other teachers.
III. Incidents Dass Claims Are Direct Evidence of Discrim-
ination
Dass sets forth the following evidence as direct evi-
dence she was discriminated against based on her
national origin: (1) Jeske’s alleged statement telling Dass
to look for a teaching job on the North Side where most
of the Indian kids go; (2) Jeske’s vehement opposition
to Dass’s grievance; (3) Jeske’s refusal to assign Dass to
an open third-grade class and instead assigning her to
a seventh-grade class; and (4) Jeske’s decision to send
her assistant principal to formally observe and report on
Dass, three times in one day, shortly after Dass started
teaching the seventh-grade class.
A. Jeske’s Alleged Statement
Jeske met with Dass several days after the April 28, 2006
observation to discuss the evaluation of Dass. Dass
testified that during this meeting Jeske stated that
Dass should start looking for a job “on the North
Side where most of the Indian kids go.” Jeske denies
making the comment, but on review of a grant of sum-
8 Nos. 10-3844 & 11-1104
mary judgment against Dass, we must accept Dass’s
testimony as true.
B. Jeske’s Opposition to Dass’s Grievance
Each year, a list of teachers that are classified as
a probationary assigned teacher (PAT)3 is sent to all
principals so that the principals can decide which
PATs they wish to retain and which they wish to non-
renew. The Board’s Human Resource Department (HR
Department) erroneously misclassified Dass as a tempo-
rary assigned teacher (TAT) 4 . Therefore, Dass did not
appear on the list of PATs sent to Jeske in the spring of
2006. Declining student enrollment projections for the
2006-2007 school year cost Casals six teaching posi-
tions. Dass was one of the six teachers displaced by
Human Resources because of being erroneously mis-
classified as a TAT rather than a PAT. Jeske had no role
in the misclassification of Dass as a TAT or the displace-
ment that resulted from that misclassification.
3
A PAT is a full-time teacher serving the probationary period
set forth in 105 ILCS 5/34-84. Teachers in their first, second, or
third year of probationary service could be terminated without
reason at least 30 days before the end of the school year.
Teachers in their fourth year of probationary service must
be given a reason for termination at least 30 days before the
end of the school year.
4
Generally, a TAT is assigned to temporarily fill a position
that is vacant due to an appointed teacher taking leave.
Nos. 10-3844 & 11-1104 9
Dass filed a grievance challenging the misclassification
and displacement. While Jeske eventually learned Dass
had been erroneously classified as a TAT, Jeske still
objected to Dass’s return to Casals. In Jeske’s view, if it
were not for the misclassification of Dass, Jeske could
have non-renewed Dass in the spring of 2006. Jeske
sent several emails to the Board’s HR Department in
which she indicated her desire that Dass not be returned
to Casals. One email stated, “If Dass is truly a PAT
I should have been able to simply non-renew her.
Believe me I have tried everything possible to do so.”
Another email stated, “I have the Department of Justice
breathing down my back and need to hire a Spanish
bilingual teacher before my November 1 audit.” Dass
contends that these comments, combined with Jeske’s
alleged comment that Dass should teach on the North
Side where the Indian kids go to school and her vigorous
opposition to Dass being rehired at Casals, show Jeske’s
discriminatory intent. The Board agreed that Dass
had been misclassified and should be returned to Casals.
C. Jeske’s Decision to Assign Dass to a Seventh-Grade
Rather than Third-Grade Class
Upon Dass’s return to Casals in November 2006, Jeske
assigned Dass to teach a seventh-grade class, even though
there was an open third-grade class. That seventh-grade
class had been taught by Carla Miller from August 2006
until September 2006 and Erin Yost, who took over
the class from Miller and taught it until Dass’s Novem-
ber 2006 reinstatement and assignment to the class.
10 Nos. 10-3844 & 11-1104
When Dass returned, Jeske reassigned Yost to the open
third-grade class.
Dass alleges that Jeske manipulated the situation by
reassigning Yost to the third grade so that Jeske could
assign Dass to the seventh-grade class, which Dass
alleges had proven itself to be very difficult to disci-
pline. Dass opines that Jeske, knowing that Dass had
trouble with discipline while teaching a fifth-grade
class during the 2005-2006 school year, assigned Dass
to the seventh-grade class so Dass would be more likely
to fail than if she were assigned to the teach the third
grade—a grade Dass argues she excelled at teaching
in prior years.
Jeske offered several reasons for assigning Dass to
the seventh-grade class rather than to the open third-
grade class.5 Among Jeske’s reasons were that: (1) even
before Dass was reinstated at Casals, Jeske had planned
on moving Yost to the third grade and requesting a
teacher with a bilingual Spanish endorsement to teach
the seventh grade so that Casals could comply with
an upcoming audit; (2) input she received from Lead
Literacy Teacher, Renee Mackin, indicated Dass had
serious problems when she previously taught third
5
Jeske also decided not to return Dass to a fifth-grade class
that had started the 2006-2007 school year without a regular
teacher. The class had been covered by a substitute teacher.
However, before Dass returned, Jeske hired a new teacher
specifically for the fifth-grade class. Dass does not contend
she should have been assigned to the fifth-grade class.
Nos. 10-3844 & 11-1104 11
grade; (3) Yost, who Jeske considered a much stronger
teacher than Dass, was needed in third grade because it
is a “bridge” year, or critical testing year,6 and seventh
grade was not; and (4) Yost had been trained in DIBELS
and Reading First, two new programs for kindergarten
through third grade that Dass had not been trained
in (according to defendants, the Casals administration
did not view Dass as a good candidate for the Reading
First Program given Dass’s lack of training in the
DIBELS assessment that corresponded with the
program and her difficulty in maintaining order in her
classroom). Further, at her deposition, Jeske was asked
whether any consideration was given as to what was
best for the seventh-grade class when assigning Dass
and reassigning Yost. Jeske responded, “Yes, I needed a
teacher that had qualification to teach science, and
Mrs. Dass is highly qualified in science, in physical
science, general science, and biological science.” Jeske
also stated that she decided a “primary grade assign-
ment would be more appropriate for” Yost. Some of
the male students in the seventh-grade class had made
inappropriate comments of a sexual nature to Yost.
In response to Jeske’s explanations, Dass pointed out
that Yost had never taught the third grade before. More-
6
At her deposition, Jeske testified that “bridge” grades (in
Chicago, the third, sixth, and eighth grades) are important
because a child will have to go to summer school if they
do not receive at or above “a particular cut score” on the
ISAT. If the child does not reach that score after summer
school they have to repeat the grade.
12 Nos. 10-3844 & 11-1104
over, Yost had discipline issues in the classroom and
struggled with classroom management. In her response
to defendants’ statement of uncontested facts, Dass
also claimed that Yost was not trained in the Reading
First Program until after she was reassigned to the
third grade at Casals.
We note that Yost was not renewed after the 2006-
2007 school year. At her deposition, Jeske testified she
did not renew Yost “because in [seventh] grade, she
didn’t have much success. And I knew that the next
year, whoever was going to come back, was going to
have [seventh] grade. She did a pretty good job or a
better job, I would say, in [third] grade than she did
in [seventh], but I need seventh grade teachers, so I
didn’t renew her either.” Of further note is the fact that
after Dass took a medical leave of absence in Decem-
ber 2006, a Ms. Provost took over Dass’s seventh-grade
class on a full-time substitute basis. Jeske did not renew
Ms. Provost after the 2006-2007 school year.
D. Jeske’s Direction to Her Assistant Principal to Observe
Dass Three Times in One Day
Dass returned to teach at Casals at some point during
the first half of November 2006. Defendants claim it
was November 6 or 7, 2006, while Dass states it was no
earlier than November 13, 2006.
On November 16, 2006, assistant principal Bennie
Bonaminio conducted three observations of Dass’s class-
room, at 10:04 a.m., 10:55 a.m., and 12:52 p.m. At his
Nos. 10-3844 & 11-1104 13
deposition, Bonaminio could not recall why he returned
to the classroom for additional observations but stated,
“I would think that I was asked to return to the class-
room by the Principal[.]” Dass alleges that Jeske took
the unusual step of having Bonaminio observe her class-
room so quickly after Dass started because Jeske knew
Dass would have trouble with discipline in the seventh-
grade class and Jeske wanted to send her assistant princi-
pal to observe and record the problems Jeske knew
Dass would have.
Bonaminio stated that in his experience as an
assistant principal, most evaluations of teachers tended
to take place at the end of the school year. Bonaminio
had never performed an evaluation within the first
two weeks of a semester. However, beginning with the
2006-2007 school year, principals could make formal
observations of teachers at any time during the school
year. Prior to the 2006-2007 school year, principals
could not make a formal observation of a teacher until
at least the 20th school day of the year.7
7
While not within the first two weeks of Yost’s assignment
to the seventh-grade class, Jeske did make an evaluation of
Yost’s performance during the short time she was teaching
the seventh-grade. The evaluation noted that “classroom
management must improve for lessons to be effective and
that Yost needed to work on daily routines and consistency.”
14 Nos. 10-3844 & 11-1104
IV. Dass’s Performance as a Seventh-Grade Teacher During
the 2006-2007 School Year
During Bonaminio’s first visit he noted in the “Com-
ment” section of the Classroom Teacher Visitation
Form that Dass’s classroom lacked control, that school
security had been called to the class twice that day
prior to his first visit, that students were walking
around the classroom and were using inappropriate
language, that few students were actively working on
an assignment, and that they seemed to lack direction
or purpose. Bonaminio’s written narrative following the
second visit noted that the classroom seating arrange-
ment had not been established and a student moved
around from table to table, students were working
on various assignments at one time without any
clarity from Dass as to what was supposed to be com-
pleted, students spoke out of turn in class without
being corrected, students argued with Dass, and Dass
had not established any classroom routines for students.
The written narrative following the third visit to Dass’s
classroom stated that students were out of their seats,
were making noises and yelling out continually,
seats were overturned, the classroom was littered with
paper, the classroom library was in disarray, only a
small percentage of students were doing any work, and
the students were laughing and making jokes all after-
noon. Dass admits that these observations accurately
reflect what happened in her classroom on November 16,
2006. However, Dass points out this was “the third
or fourth day of [her] being there.”
Nos. 10-3844 & 11-1104 15
Dass testified that Jeske observed her performance
on November 21, 2006. When Jeske walked in, the class
was in total mayhem and the classroom was littered
with books on the floor because Dass’s students had
been throwing them at each other that morning. Some
of Dass’s students were playing with their MP3 players
and others were sitting in groups. None of the students
were responding to Dass’s efforts to direct them back
into their assigned seats. According to Dass, Jeske did
not try to find out what was going on in the classroom
and Jeske’s presence did not stop the students from
misbehaving.
Jeske also observed Dass on November 29, 2006. She
visited Dass’s classroom three times that day and noted
the following in her written narrative: “On three
separate visits to class, each time children were writing
definitions and answering questions from the text. [Dass]
offered no instruction, explanation or assistance to the
students. Most of the students were off task. During
one class, only two students were doing the assigned
work. At one point[,] six kids were wandering around
the classroom at will.” Jeske further noted that kids
were frequently sent out of class for Band-Aids and
Kleenex. When Dass was dismissing the class in the
stairwell, only three students were with her and
the rest had wandered off. Jeske and Dass met on Decem-
ber 1, 2006 to discuss the evaluation. Dass refused to
sign to acknowledge receipt of the evaluation form
because she believed she was being treated unfairly,
and Jeske allowed the students to view her written ob-
servations that were critical of Dass.
16 Nos. 10-3844 & 11-1104
Renee Mackin, who had been assigned by Jeske to
help struggling teachers, visited Dass’s class at least
once a week to model effective teaching strategies for
Dass. Mackin noticed that Dass had significantly
more discipline and management problems than other
seventh-grade teachers. Mackin observed Dass’s class
and noticed the students were out of their seats, were
throwing things at each other, and were not on task.
Mackin gave Jeske her opinion that Dass was a weak
teacher. Dass maintains she was not unique in needing
and receiving assistance from Mackin.
Jose Candelario was a security guard at Casals.
Candelario had spent an inordinate amount of time
addressing disciplinary problems in both Dass’s fifth-
grade and seventh-grade classes. Other seventh-grade
teachers had problems with discipline, but Candelario
had more problems with Dass than other teachers.8
Dass admits that while she served as a seventh-grade
teacher, her classroom was out of control—specifically
that her students did not pay attention to her and were
disruptive. Dass had difficulty managing her classroom
every single day. She also admits telling Jeske on
several occasions that she could not handle her teaching
8
While not related to Dass’s seventh-grade performance,
Candelario had to station his chair outside of Dass’s class-
room door when she was a fifth-grade teacher because Dass’s
problems managing the class had gotten so severe and
Candelario was called to her room much more often than to
any other room.
Nos. 10-3844 & 11-1104 17
duties as a seventh-grade teacher. Dass also told Jeske
that she was unable to get her students to respond to her
or follow basic directives from her. Dass explained to
Jeske that the disciplinary problems were making it
difficult to teach her students.
V. Dass’s Medical Leave and Eventual Non-renewal for the
2007-2008 School Year
In December 2006, Dass requested and received
medical leave to be effective from December 4, 2006 until
June 17, 2007. Dass began her leave on December 4, 2006,
and did not return the rest of the school year. In
March 2007, while Dass was on medical leave, Jeske
recommended to the Board that Dass be non-renewed
for the 2007-2008 school year. Board rules and policies
allow for a probationary teacher on medical leave to
be non-renewed as long as the non-renewal is not
because of the medical leave. In April 2007, Dass
received a notice from the Board that informed her that
her employment would terminate on August 24, 2007.
As stated, Jeske also recommended that both Yost and
Ms. Provost, the teacher hired to substitute for Dass
while Dass was on medical leave, as well as two other
teachers, be non-renewed for the 2007-2008 school year.
Yost, Provost, and the two other teachers were not of
Indian origin and were all born in the United States.
The district court granted summary judgment for the
defendants on Dass’s federal claims. This appeal fol-
lowed. We affirm.
18 Nos. 10-3844 & 11-1104
ANALYSIS
I. Legal Standard
We review the district court’s decision to grant sum-
mary judgment de novo. Ashman v. Barrows, 438 F.3d 781,
784 (7th Cir. 2006). Summary judgment is appropriate
“if the movant shows that there is no genuine dispute as
to any material fact and the movant is entitled to judg-
ment as a matter of law.” Fed. R. Civ. P. 56(a). All facts
are construed and all inferences are drawn in favor of
the nonmovant. Foskett v. Great Wolf Resorts, Inc., 518
F.3d 518, 522 (7th Cir. 2008). With this standard in mind,
we turn to Dass’s claim of employment discrimina-
tion based on her national origin.
II. Dass’s National Origin Discrimination Claim Under
Title VII and § 1981
Dass claims that (1) Jeske’s decision to assign Dass to
the seventh-grade class and (2) Jeske’s recommendation
to the Board to non-renew Dass for the 2007-2008
school year, and the Board’s acceptance of that recom-
mendation, were acts of discrimination based on Dass’s
national origin in violation of Title VII and § 1981. Dis-
crimination claims under Title VII and § 1981 are nearly
identical, and Dass treats them identically. Burnell v.
Gates Rubber Co., 647 F.3d 704, 708 (7th Cir. 2011). Ac-
cordingly, we apply the same analysis to Dass’s claims
against Jeske and the Board.
Dass may attempt to prove her national origin discrimi-
nation claims under Title VII and § 1981 under either the
Nos. 10-3844 & 11-1104 19
direct or indirect method. See Montgomery v. Am. Airlines,
Inc., 626 F.3d 382, 393 (7th Cir. 2010); Cerutti v. BASF Corp.,
349 F.3d 1055, 1060 (7th Cir. 2003). Dass elected to
abandon her indirect method theory on appeal and pro-
ceed under only the direct method.
Even though Dass is proceeding under the direct
method, Dass still must demonstrate she suffered an
adverse employment action.9 Lewis v. City of Chicago,
496 F.3d 645, 652-53 (7th Cir. 2007) (citing Rhodes v.
Illinois Dep’t of Transp., 359 F.3d 498, 504 (7th Cir. 2004)
(“Whether the plaintiff proceeds by the direct or indirect
method of proof, he must show a materially adverse
employment action”)). Therefore, before addressing
Dass’s direct method theory, we will address what
adverse employment actions are at issue here. Dass
contends she suffered two adverse employment actions.
First, Dass argues the decision to non-renew her was
an adverse employment action. Defendants do not
dispute this. The second adverse employment action that
Dass alleges she suffered was being assigned to teach
9
This phrase “adverse employment action” does not actu-
ally appear in the statute. The statutory term is “discrimina-
tion.” The phrase “adverse employment action” is a “judicial
gloss” that “often may help to express the idea—which the
Supreme Court has embraced—that it is essential to dis-
tinguish between material differences and the many day-to-day
travails and disappointments that, although frustrating, are
not so central to the employment relation that they amount
to discriminatory terms and conditions.” Minor v. Centocor,
Inc., 457 F.3d 632, 634 (7th Cir. 2006).
20 Nos. 10-3844 & 11-1104
seventh grade rather than third grade. Defendants,
citing this court’s decision in Lucero v. Nettle Creek Sch.
Corp., 566 F.3d 720 (7th Cir. 2009), argue the decision to
assign Dass to teach the seventh grade was not an
adverse employment action.
A. The Decision to Assign Dass to the Seventh-Grade Class
Upon Dass’s Return to Casals in November 2006 Was
Not an Adverse Employment Action
An adverse employment action must “materially alter
the terms and conditions of employment.” Stutler v. Ill.
Dep’t of Corr., 263 F.3d 698, 703 (7th Cir. 2001). A
materially adverse employment action is more than a
mere inconvenience or an alteration of job responsi-
bilities. Rhodes v. Ill. Dep’t of Transp., 359 F.3d 498, 504
(7th Cir. 2004). “While adverse employment actions
extend beyond readily quantifiable losses, not every-
thing that makes an employee unhappy is an actionable
adverse action.” O’Neal v. City of Chicago, 392 F.3d 909,
911 (7th Cir. 2004) (quotation omitted).
The Seventh Circuit has articulated three general cate-
gories of actionable, materially adverse employment
actions:
(1) cases in which the employee’s compensation,
fringe benefits, or other financial terms of employ-
ment are diminished, including termination; (2) cases
in which a nominally lateral transfer with no
change in financial terms significantly reduces the
employee’s career prospects by preventing her from
Nos. 10-3844 & 11-1104 21
using her skills and experience, so that the skills are
likely to atrophy and her career is likely to be
stunted; and (3) cases in which the employee is not
moved to a different job or the skill requirements of
her present job altered, but the conditions in which
she works are changed in a way that subjects her to
a humiliating, degrading, unsafe, unhealthful, or
otherwise significantly negative alteration in her
workplace environment.
Nichols v. S. Illinois Univ.-Edwardsville, 510 F.3d 772, 780
(7th Cir. 2007) (quoting O’Neal, 392 F.3d at 911). Dass
claims that the assignment to the seventh grade was a
nominally lateral transfer that reduced her career
prospects by preventing her from using her skills or
experience and was a change in the conditions in which
she worked that subjected her to a significantly nega-
tive alteration in her work environment. We disagree.
Defendants cite Lucero as support for their argument
that the decision to assign Dass to teach seventh grade
rather than third grade was not an adverse employment
action. In Lucero, the plaintiff, a female Hispanic teacher,
was reassigned from teaching 12th-grade English to
teaching 7th-grade English. Lucero, 566 F.3d at 727.
The plaintiff responded by bringing retaliation and dis-
crimination claims against her school system, its adminis-
trators, and members of the school board of trustees.
Id. at 723. The retaliation claims were brought under
Title VII of the 1964 Civil Rights Act (42 U.S.C. § 2000e-
3(a)) and Title IX of the Education Amendments of 1972
(20 U.S.C. § 1681(a)). Id. at 728. The plaintiff’s discrim-
22 Nos. 10-3844 & 11-1104
ination claims were brought pursuant to Title VII,
Title IX, and § 1981. Id. at 730.
To prevail on the retaliation claims, the plaintiff had
to establish that she suffered a material adverse employ-
ment action. Id. at 728. The plaintiff argued her reassign-
ment from teaching 12th-grade English to teach 7th-
grade English was an adverse employment action
“because her teaching reassignment would dissuade
reasonable teachers from making or supporting a charge
of discrimination . . . and teaching English 7 is less presti-
gious than teaching Seniors.” Id. at 729. This court
rejected this argument, stating that the plaintiff’s
“personal preference is not sufficient to establish an ad-
verse action.” Id. at 730. This court went on to reject
the plaintiff’s argument and noted that the plaintiff
“was not reassigned to a position consisting of objectively
less desirable duties.” Id. at 729. The court reasoned
that the plaintiff “continued to teach the same
academic subject in the same building and under the
same conditions after her reassignment. In fact, her reas-
signed duties were the same teaching duties she suc-
cessfully performed for all but one year of teaching for
the School Corporation.” Id. Moreover, the plaintiff’s
compensation, benefits, and workplace environment
did not change. Id. at 730.
The Lucero plaintiff also had to demonstrate a mate-
rially adverse employment action that resulted from
the alleged discrimination to survive summary judg-
ment on her discrimination claim. Id. While the plaintiff
argued her career prospects were damaged and her
Nos. 10-3844 & 11-1104 23
attractiveness to other school districts was diminished,
she did not have the evidence to support these claims.
Id. at 730-31. The court concluded the plaintiff had not
submitted enough evidence to show a materially ad-
verse employment action. Id. at 731.
In the case sub judice, Dass does not claim a loss of
prestige. Instead. Dass claims she was denied a position
for which she was best suited and put in a different
and more difficult position—the result of which was a
significant alteration of her work environment and im-
pairment of her ability to succeed as a teacher. Dass’s
appellate brief states that unlike the plaintiff in Lucero,
“Dass has evidence her workplace changed because of
her assignment to teach 7th grade instead of 3rd grade.”
See Dass’s Appellate Brief, at 22. However, Dass does
not list any of this “evidence.” Her subjective belief
that seventh grade is so much more difficult to teach
than third grade such that being assigned to seventh
grade altered her work environment is not sufficient to
make that assignment a materially adverse employ-
ment action. Moreover, this argument ignores the fact
that Dass taught fifth grade, not third grade, during the
school year prior to being assigned to the seventh grade.
In other words, Dass was not reassigned from the third
grade to the seventh grade. She was assigned to the
seventh grade after she won her grievance and came
back to teach in the middle of the school year. As
stated, the fact she was not assigned to her preferred
class does not make this a materially adverse
employment action. Under Dass’s theory, if Jeske had
reassigned Dass to the fifth grade upon her return, this
24 Nos. 10-3844 & 11-1104
would also be a materially adverse employment action
since Jeske knew Dass struggled with the fifth grade
the year before. Such cannot be the case. Further, there
is no evidence that Dass’s responsibilities or pay were
reduced, or that her career prospects were damaged
or that her attractiveness to other school districts was
diminished. Dass has not submitted sufficient evidence
to raise a genuine factual issue as to whether her assign-
ment to teach seventh grade rather than third grade
was an adverse employment action resulting from
alleged discrimination. That the seventh-grade class she
was assigned to may have been more unruly than third-
grade students does not make Dass’s assignment to the
seventh grade a materially adverse employment action.
Accordingly, the only adverse employment action
Dass suffered was the termination. However, while the
decision to assign Dass to the seventh grade was not an
adverse employment action, we will consider that assign-
ment as a part of Dass’s argument, addressed below,
that there was a mosaic of circumstantial evidence of
discrimination.
B. Dass Has Not Provided Sufficient Circumstantial Evi-
dence of Discrimination for Her Direct Method Theory
of Discrimination to Survive Summary Judgment
“Under the direct method, the plaintiff must produce
either direct or circumstantial evidence that would
permit a jury to infer that discrimination motivated an
adverse employment action.” Diaz v. Kraft Foods Global,
Inc., 653 F.3d 582, 587 (7th Cir. 2011). This court has
Nos. 10-3844 & 11-1104 25
stated that direct evidence consists of either an “outright
admission by the decisionmaker that the challenged
action was undertaken because of the [plaintiff’s na-
tional origin]” or a “convincing mosaic of circumstantial
evidence . . . that point[s] directly to a discriminatory
reason for the employer’s action.” Davis v. Con-Way
Transp. Cent. Express, Inc., 368 F.3d 776, 783 (7th Cir. 2004)
(internal quotations and citations omitted). However,
the “mosaic” language, first used by this court in Troupe
v. May Department Stores Co., 20 F.3d 734, 737 (7th Cir.
1994), was not intended to “promulgate a new stan-
dard.” Sylvester v. SOS Children’s Villages Illinois, Inc.,
453 F.3d 900, 904 (7th Cir. 2006). As this court recently
stated, “we consistently have employed [the ‘mosaic’]
language to articulate the principle that, for a plaintiff
proceeding under the direct method to defeat summary
judgment using circumstantial evidence, ‘[a]ll that is
required is evidence from which a rational trier of fact
could reasonably infer that the defendant had [taken
an adverse employment action against] the plaintiff
because the latter was a member of a protected class.’ ”
Hanners v. Trent, No. 11-1754, 2012 WL 899062, at *7 (7th
Cir. Mar. 19, 2012) (quoting Troupe, 20 F.3d at 737).
Dass cites to no admissions of discrimination, and
relies, instead, on circumstantial evidence from which
she alleges the trier of fact could reasonably infer that
Jeske discriminated against Dass because of her national
origin.
The Seventh Circuit has recognized three different
types of circumstantial evidence of intentional discrim-
ination: (1) suspicious timing, ambiguous oral or written
26 Nos. 10-3844 & 11-1104
statements, 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;1 0 (2) evidence that similarly situ-
ated employees outside the protected class received
systematically better treatment;1 1 and (3) evidence that
the plaintiff was qualified for the job in question but
was passed over in favor of a person outside the pro-
tected class and that the employer’s stated reason was
a pretext for discrimination.1 2 Petts v. Rockledge Furniture
LLC, 534 F.3d 715, 720-21 (7th Cir. 2008) (citing Hossack
v. Floor Covering Assocs. of Joliet, Inc., 492 F.3d 853, 862
(7th Cir. 2007).
The circumstantial evidence a plaintiff presents
“must point directly to a discriminatory reason for the
employer’s action” (Adams v. Wal-Mart Stores, Inc., 324
F.3d 935, 939 (7th Cir. 2003)) and be “directly related
to the employment decision.” Venturelli v. ARC Cmty.
Service, Inc., 350 F.3d 592, 602 (7th Cir. 2003) (quotation
omitted).
Here, Dass’s “mosaic” includes four main pieces of
evidence: (1) Jeske allegedly told Dass that she should
10
This is the type of evidence the Seventh Circuit has referred
to as “a mosaic of evidence.” See Kennedy v. Schoenberg, Fisher
& Newman, Ltd., 140 F.3d 716, 724 (7th Cir. 1998).
11
This is often referred to as “comparative evidence.” Id. at
724-25.
12
This is often referred to as “pretext evidence.” Id. at 725.
Nos. 10-3844 & 11-1104 27
look for another job on the North Side where most of the
Indian kids go; (2) Jeske knew Dass’s grievance was
valid, yet vehemently opposed the grievance; (3) Jeske
refused to assign Dass to the open third-grade class
and instead assigned Dass to a seventh-grade class that
had proved itself to be a difficult class to discipline; and
(4) Jeske sent the assistant principal to observe and
report on Dass three times in one day shortly after
Dass started teaching the class.
The closest thing Dass has to an admission of discrimi-
natory intent by defendants is Jeske’s alleged comment
that Dass should look for another job on the North Side
where most of the Indians go. “A remark can raise an
inference of discrimination when it ‘was (1) made by
the decision maker, (2) around the time of the decision,
and (3) in reference to the adverse employment ac-
tion.’ ” Petts, 534 F.3d at 721 (quoting Hemsworth v.
Quotesmith.Com, Inc., 476 F.3d 487, 491 (7th Cir. 2007).
However, “[t]o be probative of discrimination, iso-
lated comments must be contemporaneous with the
discharge or causally related to the discharge decision
making process.” Geier v. Medtronic, Inc., 99 F.3d 238,
242 (7th Cir. 1996). There is no set cut-off date “by
which comments must be made in order to support a
finding of discriminatory intent,” rather the determina-
tion must be made after considering all of the facts. Nagle
v. Vill. of Calumet Park, 554 F.3d 1106, 1115 (7th Cir. 2009).
In fact, the Seventh Circuit has rejected a bright line
test based on timing alone. See Paz v. Wauconda Healthcare
and Rehabilitation Centre, LLC, 464 F.3d 659, 666 (7th Cir.
28 Nos. 10-3844 & 11-1104
2006) (“It is worth mentioning that the district court
and Wauconda were under the mistaken belief that Paz
cannot proceed under the direct method because some
of Li’s comments were made two months prior to her
firing.”). Instead, how recent the comments were made
is only one of several factors that are considered when
determining whether there was sufficient circumstantial
evidence from which the trier of fact could infer discrimi-
nation. Id. (“Yet, how recent the comments were, how
extreme, and who made the remarks are pieces of
evidence that inform whether there was a ‘mosaic of
discrimination.’ ”).
Here, Jeske’s alleged comment about seeking a job on
the North Side was made in May 2006—about 10 months
before Jeske recommended that Dass be non-renewed
for the 2007-2008 school year. The comment was not
contemporaneous to or causally related to the discharge.
Moreover, no rational juror could find that the non-
renewal was because of Dass’s national origin, even if
the remark had been closer in time. There is no doubt
that Jeske wanted to get rid of Dass, but Dass’s evidence
does not create a genuine factual issue as to whether
Jeske was motivated by national origin discrimination
rather than Dass’s admitted inability to maintain disci-
pline. The undisputed facts show that Dass was non-
renewed because she could not control her class, a class
within the range of grades she was certified to teach and
to which Jeske had the discretion to assign her. Clearly,
the alleged comment could not have been related to the
decision to non-renew Dass. This comment is there-
Nos. 10-3844 & 11-1104 29
fore insufficient to point directly to a discriminatory
reason for Dass’s non-renewal. 1 3
Dass’s other pieces of evidence in her “mosaic” like-
wise do not point directly to a discriminatory reason
for her non-renewal. Dass contends that in addition to
the alleged comment, Jeske’s opposition to Dass’s griev-
ance, refusal to assign Dass to the third grade, and
decision to have Dass’s classroom observed shortly
after she started create a chain of evidence from which
the inference must be drawn that Dass was non-
renewed because of her national origin. However, the
circumstantial evidence must “point directly to a dis-
criminatory reason for the employer’s action.” Adams v.
Wal-Mart Stores, Inc., 324 F.3d 935, 939 (7th Cir. 2003).
None of Dass’s proposed evidence points directly to
discrimination on the basis of national origin.
13
We also note that Jeske also non-renewed four non-Indian
teachers. One of the teachers, Ms. Yost, taught Dass’s seventh-
grade class up until Dass was reinstated in November 2006.
After Dass’s reinstatement and assignment to the seventh
grade, Jeske reassigned Ms. Yost to teach the same third-grade
class that Dass desired to be assigned to. Another teacher
Jeske non-renewed was Ms. Provost. Ms. Provost substituted
for Dass after Dass went on medical leave.
30 Nos. 10-3844 & 11-1104
CONCLUSION
For the foregoing reasons, we affirm the district court’s
judgment.
A FFIRMED
4-12-12