Date: 06-19-2017

Case Style: Pamela D. Ferrill v. Oak Creek-Franklin Joint School District

Case Number: 15-3805

Judge: Sykes

Court: United States Court of Appeals for the Seventh Circuit on appeal from the Eastern District of Wisconsin (Milwaukee County)

Plaintiff's Attorney: Nicholas Fairweather and Colin Good, Caitlin Madden

Defendant's Attorney: Kristofor L. Hanson, Oyvind Wistrom

Description: Pamela Ferrill was hired as the principal
of Edgewood Elementary School in the Oak Creek-
Franklin Joint School District for an initial two-year term
with an automatic third-year rollover unless the Board of
Education opted out. Ferrill is black; the school district
serves two predominantly white suburbs on the southern
edge of Milwaukee County. During her tenure as principal,
the Edgewood staff had exceedingly low morale, and Ferrill
was plagued with multiple performance complaints. Staff
described her as confrontational, inconsistent in her treatment
of her subordinates, and quick to accuse others of
racism. The superintendent of schools hired a consultant to
help improve Ferrill’s performance, but that effort failed and
the consultant bluntly recommended that Ferrill be removed.
When the time came to review the rollover of Ferrill’s
contract, the superintendent recommended that the Board
opt out. The Board accepted that recommendation. Ferrill
found a new job, which the Board treated as a functional
resignation of her position. She then sued the Board alleging
claims of racial discrimination in violation of Title VII of the
Civil Rights Act of 1964 and 42 U.S.C. § 1981, and retaliation
in violation of her rights under Title VII and the First
Amendment. The district judge granted summary judgment
for the Board on some of these claims. Other claims were
* Of the Southern District of Illinois, sitting by designation.
No. 15-3805 3
tried to a jury, which found for the Board after less than a
half-hour of deliberation.
Ferrill concentrates her appeal on the judge’s summaryjudgment
ruling rejecting her discrimination and retaliation
claims related to the Board’s decision to opt out of the thirdyear
contract rollover. The judge’s ruling was sound.
Ferrill’s shortcomings as Edgewood’s principal were well
documented and confirmed by an independent consultant,
so she has not shown that she was meeting the Board’s
legitimate performance expectations and thus has not established
a prima facie case of discrimination. The retaliation
claim fails for lack of evidence connecting the Board’s decision
to activity protected by Title VII.
I. Background
Edgewood Elementary School serves students in grades
K–5 in the Oak Creek-Franklin Joint School District. In July
2008 Dr. Sara Burmeister, the district superintendent, hired
Ferrill as Edgewood’s principal for an initial term of two
years. The contract contained an automatic rollover for an
additional year unless the Board of Education opted out
before January 31, 2010.
Ferrill’s tenure as principal was turbulent. Edgewood
was consistently plagued with low morale, the responsibility
for which Ferrill attributes to others. Because we’re reviewing
a summary-judgment ruling, we describe the key events
drawing reasonable inferences in Ferrill’s favor.
In her first few months on the job, Ferrill learned that
some of Edgewood’s students—and even some parents—
were referring to the bus that served a low-income neighborhood
as the “ghetto bus.” She also learned that some
4 No. 15-3805
white students were calling black students derogatory
names. Ferrill addressed these problems at an October staff
meeting and urged the teachers to be proactive about addressing
racial issues with their students.
In early November two fifth-grade students, one of
whom is black, started spreading a false story that certain
teachers were having sex in the faculty lounge. Ferrill reprimanded
the students, spoke with their parents, and then
discussed the matter with the two teachers at the center of
the rumormongering. The black student had confided to
Ferrill that he was afraid his misbehavior would mean he
would no longer be called on in class. When Ferrill brought
this concern to the attention of one of the wrongly accused
teachers, the teacher interpreted her comment as an unwarranted
accusation of racism.
Later that same month, Dr. Burmeister met with Ferrill to
discuss the issues we’ve just recounted and also to address
the rapidly deteriorating morale at the school and numerous
complaints from teachers about Ferrill’s management style.
In brief, Ferrill was described as confrontational, inconsistent
in her treatment of the staff, and quick to suggest that others
were either racist or culturally insensitive. Teachers lodged
similar complaints about Ferrill with Katie Kelso, the teacher’s
union representative, and in December she too spoke
with Ferrill about the growing problems stemming from her
discordant leadership style.
An incident in January 2009 continued this trend. A black
student accused a teacher of hitting her, and the school
district launched an investigation into the incident. Although
the matter was being handled at the district level,
Ferrill conducted her own independent investigation, which
No. 15-3805 5
upset the teachers and staff, who thought that Ferrill was
conducting her own investigation only because the student
was black. It was widely believed that this extra layer of
scrutiny would not have occurred had the student been
white.
In the spring semester, Dr. Burmeister hired an outside
consulting firm to help address the ongoing concerns about
Ferrill’s contentious management style. This intervention
did not go well. The consultants reported that Ferrill resisted
their efforts and faculty feared retaliation whenever they
shared ideas that she might reject. The consultants frankly
concluded that removing Ferrill was the only way to solve
the ongoing strife. Around this same time, Kelso met with
the entire teaching staff—twice—to address the still unresolved
complaints about Ferrill.
At the close of the tumultuous 2008–2009 school year,
Dr. Burmeister completed a year-end evaluation of Ferrill’s
performance. The evaluation listed her strengths and weaknesses
in a few key categories. For example, the superintendent
noted that Ferrill excelled at limiting the loss of instructional
time but needed to improve her management techniques
and interpersonal skills by (among other things)
being more receptive and responsive to staff and parental
concerns.
At the beginning of the 2009–2010 academic year, the district
gave its employees a 3% cost-of-living raise. The pay
bump came as a bit of a surprise because the district had
frozen salaries. But with staff members retiring and new
hires starting at lower salaries, the district lifted the pay
freeze and instituted a uniform cost-of-living increase.
6 No. 15-3805
Also at the start of the new school year, Dr. Burmeister
gave Ferrill a list of goals and objectives in an effort to
improve her performance. The goals and objectives roughly
tracked the issues the superintendent had identified in her
year-end evaluation. At the top of the list was a requirement
that Ferrill meet regularly with a mentor throughout the fall
semester. Ferrill did so only four times before the mentor
declared the effort futile and called it quits because Ferrill
could not admit to any need to improve her job performance.
Another incident in November 2009 signaled the beginning
of the end of Ferrill’s tenure at Edgewood. Throughout
the fall semester, a teacher had been requesting that a student
teacher from Marquette University be placed in her
classroom. It was the principal’s responsibility to make the
necessary arrangements with the university. Despite frequent
reminders from the teacher, Ferrill did not follow up.
When she finally contacted the university on November 18,
she emailed the teacher advising that she would “stop
down” to her classroom the next morning to discuss the
matter. Ferrill never showed up. The teacher reported the
no-show to the superintendent, who confronted Ferrill about
her lack of follow-through.
On November 23 Dr. Burmeister met with Ferrill—this
time with the human resources director in attendance—to
address her continuing performance deficiencies. The meeting
was tense, and when it wrapped up, the superintendent
handed Ferrill a letter containing a detailed critique of her
job performance.
On December 4 Dr. Burmeister gave Ferrill a formal performance-
improvement plan covering the remainder of the
No. 15-3805 7
school year. The plan was largely derived from the year-end
performance evaluation from the previous year and the
goals-and-objectives plan from the beginning of the fall
semester. There was not enough time to discuss the plan in
detail that day, so they agreed to meet on January 7, 2010, to
review it more thoroughly. When the meeting date came,
Ferrill arrived with an attorney. The discussion did not go
well. Ferrill wanted to talk about racial issues at the school.
Indeed, her attorney said the real problem was that the
white faculty members did not want to take direction from a
black principal. Dr. Burmeister tried to keep the focus on the
performance-improvement plan. Ferrill disagreed with the
plan and took issue with its factual foundations.
Based on this impasse and the failure of earlier intervention
efforts, positive change seemed unattainable. On
January 11 Dr. Burmeister recommended that the Board opt
out of Ferrill’s contract rollover. The Board accepted the
recommendation. A week later Ferrill sent a letter to the
Board taking issue with the performance-review plan and
raising various racial issues at Edgewood, laying the blame
at the superintendent’s doorstep. She also sent two detailed
letters to Dr. Burmeister raising similar objections.
The superintendent interpreted Ferrill’s letter to the
Board as an act of insubordination. Nonetheless, the Board
treated her accusations seriously. Ferrill was placed on paid
administrative leave while her allegations were investigated.
Dr. Burmeister was cleared of any wrongdoing, racial or
otherwise. Later in the semester, Ferrill accepted a job with
another school district, which the Board construed as a
resignation. See WIS. STAT. § 118.24(6) (stating that an admin8
No. 15-3805
istrator cannot be under contract with two school boards
simultaneously).
Ferrill then sued the school district and the Board. (We
will refer to the defendants collectively as “the Board.”) The
suit alleged claims of racial discrimination in violation of
Title VII, 42 U.S.C. §§ 2000e et seq., and § 1981 arising from
the Board’s decision to place her on administrative leave and
opting out of her contract rollover. She also alleged retaliation
claims under Title VII based on the same two employment
actions. Finally, she asserted a claim for retaliation in
violation of her rights under the First Amendment.
The Board moved for summary judgment. The district
judge granted the motion in part, holding that the evidence
was insufficient to create a triable issue of fact on the discrimination
and retaliation claims related to the Board’s
decision to opt out of Ferrill’s contract rollover. The remaining
claims were tried to a jury, which returned a verdict for
the Board after just 20 minutes of deliberation.
II. Analysis
Ferrill’s appeal is limited to the judge’s ruling on summary
judgment that the evidentiary record was insufficient
to warrant a trial on the discrimination and retaliation claims
stemming from the Board’s decision not to roll over her
contract. We review that ruling de novo. Turner v. The Saloon,
Ltd., 595 F.3d 679, 683 (7th Cir. 2010).
“The legal analysis for discrimination claims under
Title VII and § 1981 is identical, so we merge our discussion
of the two claims.” Smith v. Chicago Transit Auth., 806 F.3d
900, 904 (7th Cir. 2015). Last year we overruled a line of our
cases separating discrimination claims into “direct” and
No. 15-3805 9
“indirect” categories and assigning different legal standards
to each. See Ortiz v. Werner Enters., Inc., 834 F.3d 760, 765–66
(7th Cir. 2016). We clarified in Ortiz that all discrimination
cases present the same basic legal inquiry: At the summaryjudgment
stage, the proper question to ask is “whether the
evidence would permit a reasonable factfinder to conclude
that the plaintiff’s race, ethnicity, sex, religion, or other
proscribed factor caused the [plaintiff’s] discharge or other
adverse employment action.” Id. at 765.
Nothing in Ortiz, however, displaced the burden-shifting
analysis established in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973), which is sometimes referred to as the
“indirect” method of proof. 834 F.3d at 766. (It’s not our
prerogative to displace a decision method established by the
Supreme Court.) The McDonnell Douglas framework is just
“a formal way of analyzing a discrimination case when a
certain kind of circumstantial evidence—evidence that
similarly situated employees not in the plaintiff’s protected
class were treated better—would permit a jury to infer
discriminatory intent.” Smith, 806 F.3d at 905.
The parties and the district judge used the McDonnell
Douglas burden-shifting method to analyze this case, so we’ll
do the same. This familiar framework requires the plaintiff
to carry the burden of production on a four-part prima facie
case. The plaintiff must first show that “(1) he is a member of
a protected class; (2) he performed his job to his employer’s
expectations; (3) he suffered an adverse employment action;
and (4) one or more similarly situated individuals outside
his protected class received better treatment.” Id.; see also
Coleman v. Donahoe, 667 F.3d 835, 845 (7th Cir. 2012) (citing
McDonnell Douglas, 411 U.S. at 802). If the plaintiff makes
10 No. 15-3805
this prima facie showing, the burden shifts to the employer
to come forward with a legitimate, nondiscriminatory reason
for the challenged employment action. Smith, 806 F.3d at 905.
If the employer does this, then the burden shifts back to the
plaintiff to produce evidence establishing a genuine dispute
of fact about whether the employer’s reason was a pretext
for discrimination. “Pretext” is more than a mere mistake; it
“means a lie”—a “phony reason” for the employment action.
Id. (quotation marks omitted).
The crux of this case is the second element of the prima
facie case, which asks whether the plaintiff was meeting the
employer’s legitimate performance expectations. We agree
with the district judge that Ferrill has not made the required
showing. The uncontroverted evidence all points in one
direction: Ferrill’s job performance during her two years at
Edgewood was fraught with problems and fell well below
the district’s legitimate expectations, creating serious erosion
in morale at the school. Staff repeatedly complained that her
management style was confrontational and inconsistent, and
she was sometimes nonresponsive. She was prone to hostility
toward opposing viewpoints and quick to intimate that
those around her were racist. Importantly, these shortcomings
were confirmed by the independent consulting firm
that was brought in to evaluate the situation and help Ferrill
improve. That effort bore no fruit; the consultants ultimately
recommended that the only way to restore the school’s
deteriorating morale was to remove Ferrill.
Dr. Burmeister herself experienced Ferrill’s resistance to
improvement firsthand and over an extended period of time.
She implemented essentially the same set of goals and
objectives no fewer than three times during the course of
No. 15-3805 11
two school years and amid persistent friction between Ferrill
and her subordinates. To no avail; there was no meaningful
improvement. Ferrill admits that she simply disagreed with
the substance of the improvement plans.
Ferrill’s response is to argue that her year-end evaluation
identified some areas in which she was meeting the district’s
expectations. True, but the superintendent’s review also
identified serious weaknesses in her job performance. A
reasonable jury could not conclude, based on that evaluation
alone, that Ferrill was performing up to standards. More to
the point, Dr. Burmeister reiterated the weaknesses in
Ferrill’s performance throughout the 2009–2010 school year
with no discernable improvement. The year-end review
hardly establishes that she was meeting the district’s legitimate
expectations.
Equally faulty is Ferrill’s argument that the 3% raise at
the beginning of the 2009–2010 school year demonstrates
that Dr. Burmeister thought she was meeting expectations.
The record is unequivocal that this was a district-wide costof-
living increase, so no conclusion about her performance
can be drawn from it.
Finally, Ferrill argues that all of Dr. Burmeister’s criticisms
can be traced to racial issues at Edgewood. In short,
she maintains that once she embarked on her effort to raise
awareness of racism, the superintendent became intent on
removing her no matter her performance. To support this
theory, she points to what she calls the “suspicious timing”
of her first meeting with Dr. Burmeister to discuss
performance problems. That meeting, in November 2008,
occurred soon after she drew attention to racially charged
incidents at the school. There was no suspicious timing at
12 No. 15-3805
work here. The Board’s decision to opt out of the rollover
came more than a year later.
Even if we set aside the McDonnell Douglas framework
and approach this case in the more straightforward way
specified in Ortiz, summary judgment for the Board was
appropriate. Undisputed evidence establishes that the Board
decided to stop Ferrill’s rollover because of her persistent
resistance to improving her performance, which was well
documented and confirmed by an independent consultant.
On this record, a reasonable jury could not conclude that the
Board took this action because of Ferrill’s race.
Ferrill’s claim for retaliation fares no better. A retaliation
claim arises when an employee engages in activity protected
by Title VII and suffers an adverse employment action as a
result. See Boston v. U.S. Steel Corp., 816 F.3d 455, 464 (7th Cir.
2016). The parties debate whether Ferrill has shown that she
engaged in protected activity in the first place. “Protected
activity” is “some step in opposition to a form of discrimination
that the statute prohibits.” O'Leary v. Accretive Health,
Inc., 657 F.3d 625, 631 (7th Cir. 2011). It’s not necessary that
the employee opposed a practice that is actually prohibited
by Title VII; the employee need only have a “good-faith and
reasonable belief that he is opposing unlawful conduct.” Id.
(emphasis added).
A threshold difficulty is that Ferrill’s efforts to raise
awareness of racial issues at Edgewood focused almost
entirely on behavior by the students and did not concern any
employment practice by the school district. Student behavior
falls outside the ambit of Title VII. See Artis v. Francis Howell
N. Band Booster Ass'n, Inc., 161 F.3d 1178, 1183 (8th Cir. 1998).
That said, in her meeting with Dr. Burmeister on January 7,
No. 15-3805 13
2010, Ferrill did suggest—through her attorney—that white
faculty members were reluctant to take direction from a
black principal. Though this complaint is highly generalized
and only tenuously connected to an employment practice by
the district, we’ll assume for the sake of argument that it’s
enough to qualify as opposition to a form of discrimination
prohibited by Title VII.
Even with that generous assumption, Ferrill’s claim fails
for lack of evidence of causation. To prevail on a retaliation
claim requires “proof that the desire to retaliate was the butfor
cause of the challenged employment action.” Univ. of Tex.
Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2528 (2013). As we’ve
explained, the evidence establishes beyond dispute that
Dr. Burmeister’s recommendation that the Board opt out of
the contract rollover was motivated by Ferrill’s persistent
resistance to improving her performance, which spanned the
entirety of her two-year tenure and was confirmed by an
independent consultant. Ferrill asserts that Dr. Burmeister
would not have taken this step but for a desire to retaliate
against her for complaining about racism at the school. The
record does not support that assertion.

Outcome: AFFIRMED.

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Defendant's Experts:

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