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

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.

AFFIRMED.