In the
United States Court of Appeals
For the Seventh Circuit

No. 99-3841

Linda Patton and Sandra Branch,

Plaintiffs-Appellants,

v.

Indianapolis Public School Board,
Shirl E. Gilbert, individually and as the
former Superintendent of the Indianapolis
Public Schools, and Esperanza Zendejas,
as the Superintendent of the Indianapolis
Public Schools,

Defendants-Appellees.

Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. IP 96-1515-C (M/S)--Larry J. McKinney, Chief Judge.

Argued May 10, 2001--Decided January 4, 2002



  Before Posner, Easterbrook, and Diane P.
Wood, Circuit Judges.

  Diane P. Wood, Circuit Judge. Chaos
reigned in the pupil transportation
system of the Indianapolis public schools
as the 1993-94 school year opened:
children were left standing on the
streets, some buses arrived hours late,
and some children were delivered to the
wrong places. In time, the failure caused
heads to roll. Linda Patton and Sandra
Branch were among those who felt the
consequences: both were demoted from
their positions in the school system’s
Transportation Department. Believing that
they had been singled out because of
their race and gender and for their
communication with a member of the School
Board, rather than for permissible
reasons, the two women sued the Board and
its former and current superintendents.
The district court granted summary
judgment for the defendants, holding that
the plaintiffs had not provided any
evidence that other similarly situated
employees were treated more favorably or
that their contact with the Board member
was constitutionally protected. We agree
that the defendants were entitled to
prevail, and we thus affirm the district
court’s judgment.

I

  Both Patton and Branch are African-
Americans, and both had a long and
successful history with the Indianapolis
Public Schools (IPS). Patton began
working for IPS as a bus driver in 1973.
She was promoted several times and in
1992 became Operations Manager. When the
Director of Transportation took an
indefinite medical leave of absence in
July 1993, Patton was appointed the
Acting Director of Transportation. As
Acting Director, Patton was the head of
the IPS Transportation Department (the
Department). Branch began working for IPS
in 1984 as a bus attendant. She too was
promoted through the management ranks
over the next several years, ultimately
to the position of Base Supervisor. In
July 1993, when Patton was promoted to
Acting Director, she chose Branch to
serve as the Acting Operations Manager.

  Upon assuming their new positions, the
plaintiffs analyzed the Department’s
readiness for the start of the 1993-94
school year. Effective that year, IPS had
enacted a new "Select Schools Plan" ("the
Plan"), which allowed parents to choose
which school their children would attend.
The Plan was expected to have (and had) a
substantial impact on the Department
because students would no longer
necessarily attend the school closest to
their home. The Department was assigned
the difficult responsibility of designing
and administering new bus routes and
schedules.

  As the beginning of the school year
neared, the plaintiffs, fearing that the
Department was unprepared, privately
notified Board Member Hazel Stewart of
the impending crisis. They acted in
secret because (they claimed in
affidavits) Stewart had told Patton that
there was a policy against employees
speaking with Board members. The
plaintiffs discussed with Stewart the
various problems they foresaw with the
new transportation system and also shared
their fears that, if and when the system
failed, then-IPS Superintendent Shirl
Gilbert was going to blame them.

    Unfortunately for all concerned, Patton
and Branch’s concerns proved to be
justified. When the first days of school
arrived, the new routes and schedules
failed miserably. Bus routes were not
properly developed, drivers did not know
their routes, and buses did not arrive at
their designated spots at the correct
times. Bus drivers also were not given
current route sheets, and the information
necessary to update those sheets was not
communicated within the Department. As a
result, thousands of children throughout
Indianapolis missed school, were stranded
at bus stops waiting for buses that never
came, or were dropped off at the wrong
places at the end of the school day.

  Serious problems require serious
measures. In this case, Superintendent
Gilbert (also an African-American) took
personal charge of the "bus crisis,"
stationing himself at the central
transportation office. During this period
of time, Gilbert had an opportunity to
observe Patton and Branch. He quickly
developed the impression that they were
unable to fix the mess themselves. This
led him in September to tap the Director
of Facilities Management, Donald Coleman
(yet another African-American), to handle
the burgeoning crisis. Gilbert also hired
consultants from Mayflower Contract
Services, Inc. (an IPS contractor) to
help IPS identify the problems,
reconfigure the bus routes, and recommend
action.

  The Mayflower consultants and Coleman
told Gilbert that Patton and Branch were
"in over their heads" and were incapable
of solving the crisis. They stated that
Patton and Branch had failed to organize
the staff, had failed to ensure proper
communication between the various
subdepartments, and had resisted working
with the consultants. As a result of
these recommendations, Gilbert
transferred Patton to the position of
Base Supervisor and Branch to a Route
Manager job. Both of those changes were
demotions.

  By late September and early October, IPS
had ironed out most of its transportation
problems. As a result of the crisis,
however, the Mayflower consultants
recommended that the Department be
reorganized. Based on the recommendations
and concerns of Coleman and the
consultants, Gilbert decided that the
plaintiffs’ demotions should be made per
manent. He communicated this decision to
them in letters dated March 4, 1994,
which formally notified them of their
demotions and specified the reasons for
the unfavorable actions. Branch and
Patton fought back with an appeal to the
School Board, but it rejected their
arguments and adopted Gilbert’s
recommendations on March 22. Six other
employees in the Department also lost
their jobs, were demoted, or were moved
to positions of less responsibility.

  On June 7, 1994, the plaintiffs filed
charges with the EEOC, and, after
receiving the obligatory right-to-
sueletter, they filed a complaint against
the School Board, Gilbert, and the
current superintendent, alleging race and
sex discrimination in violation of 42
U.S.C. sec.sec. 1981 and 1983 and Title
VII of the Civil Rights Act of 1964, 42
U.S.C. sec. 2000(e) et seq. Specifically,
they alleged that they had been demoted
from their positions, refused promotions
to higher positions, and reprimanded and
harassed because of their race and sex.
They also alleged that the demotions were
made in retaliation for exercising their
First Amendment right to speak with
Stewart.

  Defendants moved for summary judgment,
arguing that the undisputed facts showed
that all of the actions taken against the
plaintiffs were done for legitimate
nondiscriminatory reasons. The district
court agreed, granting summary judgment
for the defendants and dismissing all
claims. The plaintiffs then filed this
appeal.

II

  In evaluating their arguments, we apply
the familiar standard of review for
summary judgments, looking de novo to
ensure that the district court correctly
decided that no material facts were in
dispute (viewing the record in the light
most favorable to Patton and Branch) and
that the moving parties were indeed
entitled to judgment under the law. See
Fed. R. Civ. P. 56(c); Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 247-48
(1986). We consider first the
discrimination claims, and then the First
Amendment/ retaliation claim.
  A. Discrimination and Hostile
Environment

  1.   Race and Gender Discrimination

  The principal claim Patton and Branch
advance asserts that they were demoted
from their positions because of their
race or gender, in violation of 42 U.S.C.
sec. 1981 and Title VII. Under sec. 1981,
"[a]ll persons within the jurisdiction of
the United States shall have the same
right . . . to the full and equal benefit
of all laws . . . as is enjoyed by white
citizens." 42 U.S.C. sec. 1981(a). Under
Title VII of the Civil Rights Act, it is
unlawful for an employer "to discriminate
against any individual with respect to
his compensation, terms, conditions, or
privileges of employment, because of such
individual’s race, color, religion, sex,
or national origin." 42 U.S.C. sec.
2000e-2(a)(1). Discrimination claims
under both Title VII and sec. 1981 are
analyzed in the same manner. Eiland v.
Trinity Hosp., 150 F.3d 747, 750 (7th
Cir. 1998).

  Because the plaintiffs do not have any
direct evidence of discrimination, they
have used the familiar burden-shifting
method established in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973). To
establish a prima facie case under
McDonnell Douglas, the plaintiffs must
prove, among other things, that similarly
situated male or Caucasian employees were
treated more favorably than they were
treated. Id. at 802; see also Bratton v.
Roadway Package Sys., Inc., 77 F.3d 168,
176 (7th Cir. 1996). We agree with the
district court that Patton and Branch
have not met this burden and thus that
their case fails at the prima facie
stage.

  The plaintiffs point to two males whom
they believe were treated more favorably
than they were treated. The first is an
African-American man who was charged in
1995 with sexual harassment, but was not
demoted. But there is no reason to equate
sexual harassment allegations (whether
proven or not) with allegations about
mismanagement of the transportation
system of the entire school
district.Furthermore, the individual in
question was not even under the
supervision of the same decision-maker.
See Timms v. Frank, 953 F.2d 281, 287
(7th Cir. 1992). The second proposed
comparison is with a Caucasian man who
served in management in the Department
during the bus crisis, but who was not
disciplined. Plaintiffs have offered no
evidence about what responsibility this
man had for the bus crisis or whether
others had found his performance wanting.
The fact that IPS did not demote either
one of these people thus tells us nothing
at all about disparate treatment of the
plaintiffs on the basis of race or
gender.

  Patton and Branch also argue that IPS
had a policy of returning an employee to
her previous position when a demotion was
imposed. Thus, they argue, they suffered
discrimination when they were demoted
several steps down. Under the alleged
policy, Patton would have been demoted
from Acting Director to Operations
Manager, and Branch from Acting
Operations Manager to Base
Supervisor;instead, Patton received the
lower job of Base Supervisor, and Branch
was made a Route Manager. Once again,
they claim that the reason for the
deviation in policy was their race and
gender, but once again, they have failed
to point to any other IPS employee, male
or Caucasian, who received the allegedly
"normal" treatment upon a demotion.

  The plaintiffs never identified a
Caucasian employee or a male employee who
was in a supervisory position similar to
that which either of them held, with
similar responsibility for the bus
crisis, who was not demoted to the same
degree or discharged. Patton was the
Acting Director of Transportation--the
head of the Department. It is only
logical that she and Branch, the person
in the next highest position, would be
forced to take the fall. The plaintiffs
argue quite passionately in their briefs
that they were scapegoats in the fiasco
and that Gilbert even admitted that he
was going to blame them for the problems.
But why not? They ran the Department, and
it is hardly out of line for a higher
level manager to hold subordinates to the
satisfactory performance of a task.
Without some evidence that the obvious
explanation is not the true one,
plaintiffs are left with nothing. It does
not violate sec. 1981 or Title VII for
Gilbert to make them "scapegoats" (or
less pejoratively, hold them
responsible), unless they were singled
out because of their race or gender.

  As a side note, even if the plaintiffs
had established their prima facie case,
IPS has shown that its restructuring
decision was justified by legitimate,
nondiscriminatory reasons. See McDonnell
Douglas, 411 U.S. at 802-03. The
Mayflower consultants recommended that
Patton and Branch be demoted because they
were ill-equipped to deal with the
crisis. Patton and Branch have not
offered any evidence that Mayflower was
trumping up a story as a pretext for race
or gender discrimination. The broader
picture also is devoid of evidence of
pretext. During the reorganization of the
Department, eight individuals
sufferedadverse employment actions and
seven were promoted. Of the eight who
suffered adverse employment actions,
three were Caucasian males, two were
African-American males, and three were
African-American females. Of the seven
who were promoted, one was a Caucasian
male, two were African-American males,
one was a Caucasian female, and three
were African-American females. This
evidence also tends to refute any
allegations that Gilbert or the Board
were using race or gender in making
personnel decisions.


  2.   Hostile Work Environment

  A plaintiff may also establish a Title
VII violation by proving that
discrimination based on race or gender
has created a hostile or abusive work
environment. See Meritor Sav. Bank v.
Vinson, 477 U.S. 57, 67 (1986). Patton
alleges that she was subjected to a
hostile work environment by her immediate
supervisor, Coleman, and by Gilbert. She
claims that Coleman treated her in a
rude, abrupt, and arrogant manner,
ignored her work-related suggestions and
failed to keep her informed about changes
at work. Finally, she alleges that
Gilbert subjected her to "stern and
severe criticism" after she took three
days of sick leave in September 1993, in
the midst of the bus crisis.

  Although it is possible that Patton was
unhappy at work and that Coleman and
Gilbert had something to do with her
unhappiness, she has not stated a Title
VII claim. First, a reasonable jury could
not have determined that Patton’s
treatment was so severe or pervasive as
to alter the conditions of her employment
in a significant way. Id. Many employees
have to put up with some amount of rude,
arrogant, or boorish behavior at work;
the alleged actions of Coleman and
Gilbert fall far short of creating an
actionable hostile work environment.

  Second, Patton has presented no evidence
to show that Coleman and Gilbert’s
treatment of her was based on her race or
gender--she argues instead that the
"abusive conduct was purely personal."
This is fatal to her claim. See Johnson
v. Hondo, Inc., 125 F.3d 408, 415 (7th
Cir. 1997) (Under Title VII, a hostile
work environment exists only when "the
victim was singled out because of his or
her gender [or race]."). Title VII "does
not guarantee a utopian workplace, or
even a pleasant one." Vore v. Indiana
Bell Tel. Co., 32 F.3d 1161, 1162 (7th
Cir. 1994). As long as the hostility was
not based on a protected characteristic,
Title VII is not implicated. See id.


  B. Retaliation for Exercise of First
Amendment Rights

  Patton and Branch admit that they had a
secret conversation with IPS Board member
Stewart just before the school year
started, during which they shared their
concerns about the Plan and potential
transportation problems. They allege that
the School Board had a policy forbidding
employees from speaking with Board
members. Their demotions, they claim,
were the Board’s chosen method of
enforcing this policy; its actions in so
doing impermissibly infringed on their
First Amendment right to free speech.

  A state may not take adverse employment
action against an employee "for reasons
that infringe upon that employee’s
constitutionally protected interest in
freedom of speech." Vukadinovich v. Board
of Sch. Trustees, 978 F.2d 403, 408 (7th
Cir. 1992). But not all speech by public
employees raises constitutional concerns.
To recover, the plaintiffs "must show (1)
that the speech engaged in by the
employee was constitutionally protected
and (2) that the defendants retaliated
against [them] because of that speech."
Id. Here, even if Patton and Branch’s
conversation with Stewart was
constitutionally protected (a proposition
on which we express no opinion), the
plaintiffs have not provided any evidence
from which a reasonable jury could
conclude that "the protected conduct was
a ’substantial’ or ’motivating’ factor in
the defendant’s action." O’Connor v.
Chicago Transit Auth., 985 F.2d 1362,
1368 (7th Cir. 1993). The plaintiffs have
not presented any evidence to show that
Gilbert even knew about their
conversation with Stewart, much less that
the demotions later recommended by
Gilbert and approved by the Board were,
even in part, based on the conversation.
The district court’s grant of summary
judgment on this claim was correct.

  For these reasons, we Affirm the judgment
of the district court for the defendants.
