Seventh Circuit Court of Appeals Commentary : In Their Opinion : Lawyer & Attorney Michael E. Rigney : Kelley Drye & Warren Law Firm

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SILVERMAN v. BOARD OF EDUCATION (March 21, 2011)

Amy Silverman taught special education at a Chicago public high school during the 2004-2005 school year. Because she was a probationary teacher, her contract was subject to annual renewal. In early 2005, the Board of Education decided to eliminate a special education teacher slot at her school. The principal decided not to renew Silverman's contract. Silverman was pregnant at the time. She complained to the EEOC. A few months later, the Board offered her a position at the same school for the 2005-2006 school year. Silverman accepted the position, although she thought it was a more difficult assignment. The Board did not renew her contract for the 2006-2007 school year. Silverman brought suit under Title VII, alleging that the Board discriminated against her as a result of her gender by not renewing her contract when she was pregnant and also retaliated against her, after she filed an EEOC charge, by offering her a more difficult assignment and, again, not renewing her contract. Judge Manning (N.D. Ill.) granted summary judgment to the Board. Silverman appeals.

In their opinion, Circuit Judges Tinder and Hamilton and District Judge Murphy affirmed. Before addressing the merits, the Court rejected Silverman’s argument that the district court erred by not considering the EEOC's reasonable cause finding. A district court has much discretion in how it treats a reasonable cause determination. On the merits, the Court noted that Silverman chose to proceed under both the direct and indirect methods of proof. Silverman had no direct evidence of discriminatory intent so she attempted to create a "convincing mosaic" of circumstantial evidence under direct method. She attempted to do so almost exclusively with what these she thought was evidence of suspicious timing and her principal’s ambiguous comment regarding her maternity leave. The Court was not convinced. First, suspicious timing is rarely enough by itself. Second, although the principal decided not to renew Silverman's contract shortly after learning of her pregnancy, the Board’s records actually show that the principal decided to renew her contract on two separate occasions after learning of her pregnancy. The decision not to renew only came after the Board decided to eliminate a position. With respect to the indirect method, the Board stipulated to a prima facie case for summary judgment purposes. The only issue on appeal, therefore, was whether the Board articulated a nondiscriminatory reason for its actions and whether that reason was a pretext. The Board did offer such a reason. It argued that Silverman was the weakest of the probationary teachers, based on performance evaluations. Although Silverman disagreed with the evaluations, that is not enough to make the reason a pretext. Silverman raised no issue regarding the honesty of the evaluations, only their accuracy. The Court also rejected Silverman's speculation arising out of the fact that the principal interviewed other candidates for the position that she offered Silverman in 2005. The Court also rejected Silverman's retaliation claim. Under the direct method: a) the offering of a "more difficult" position is not an adverse employment action since the Board was not obligated to offer her any position, b) the negative performance evaluations could amount to an adverse employment action but there is no evidence that they were causally related to the EEOC charge, and c) the Board's 2006 decision not to renew was an adverse employment action but, again, is not causally connected to the charge. Under the indirect method, the Court concluded both that Silverman failed to identify a similarly situated individual and failed to offer sufficient evidence of pretext.