In the
United States Court of Appeals
For the Seventh Circuit

No. 00-2394

VASHTI LOVE, DR. CLAUDINE MOORE,
and WILLIE EDWARDS,

Plaintiffs-Appellants,

v.

CITY OF CHICAGO BOARD OF EDUCATION and
MILTON ALBRITTON, individually and as
Principal of the Wadsworth Elementary School,

Defendants-Appellees.



Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 97 C 8786--W. Thomas Rosemond, Jr., Magistrate Judge.


Argued December 5, 2000--Decided February 20, 2001



  Before POSNER, EASTERBROOK, and EVANS, Circuit
Judges.

  EVANS, Circuit Judge. The three plaintiffs in
this case publicly spoke out against their boss,
Milton Albritton, the principal of Wadsworth
Elementary School, and each was disciplined in
some manner after doing so. The three responded
with this sec. 1983 action alleging that the
discipline they endured constituted impermissible
retaliation for the exercise of their First
Amendment rights. A jury didn’t see it that way
as it returned a verdict in favor of Albritton
and his codefendant, the City of Chicago Board of
Education.

  Albritton has been the principal of Wadsworth,
located in the Woodlawn neighborhood of Chicago’s
south side, since 1988. In that capacity he has
final authority to reprimand the Wadsworth staff
and to raise or lower their performance
evaluations. Albritton also determines each
teacher’s assignment within the school, subject
to his or her qualifications and the union
contract, which states that a teacher’s
preference should be honored when possible. The
Board of Education, of course, supervises
Albritton’s management of Wadsworth. In addition,
the Wadsworth Local School Council--an elected
body made up of parents, teachers, community
representatives, and Albritton--has oversight
authority over the school’s programs,
improvements, and finances. The Local School
Council has renewed Albritton’s contract on three
occasions, in 1991, 1995, and 1999.

  During the 1994-95 school year, Wadsworth
implemented a special education program referred
to as "inclusion." The inclusion program was
designed to integrate special education students
into regular classes to the greatest extent
possible. Inclusion, therefore, requires that
students with special needs be placed in the
"least restrictive environment." In order to
achieve this result, social workers and school
officials conducted a case study of each special
education student. The product of each case study
was a document called an Individualized Education
Plan, or IEP, which set out the student’s goals,
along with any necessary accommodations and
services to be provided. IEPs also contain highly
personal information, such as a social history of
the student and his or her family, psychological
assessments, academic records, and a catalog of
parent and teacher concerns. We turn now to the
specific complaints of the three plaintiffs,
starting with Vashti Love.

  Love, a teacher at Wadsworth since 1991, had
some experience in "inclusion," and she claimed
she quickly grew dissatisfied with the progress
of the program. Specifically, she became
concerned that a number of regular education
teachers were insufficiently attentive to special
education students, and as a result those
students did not always receive the services and
accommodations outlined in their IEPs. After
several complaints to Albritton in 1995 and early
1996 did not resolve Love’s perceived problems,
she delivered letters to Paul Vallas, the Board’s
CEO, and Garland Cleggett, the chief education
officer in Region 5 of the Chicago Public
Schools, accusing Albritton and five staff
members of conspiring to sabotage the inclusion
program. In addition, Love charged 9 other staff
members with aiding and abetting the sabotage and
22 additional staff members with working against
the program.

  In response to Love’s complaints, Beverly
Kelley, the special education administrator for
Region 5, met with Love on December 4, 1996.
Kelley agreed to make unannounced visits to
Wadsworth, which she did. Kelley also referred
Love to Andrea Kidd, the assistant director of
Citywide Special Education Programs, to
investigate Love’s charges that inclusion funds
were being mishandled at Wadsworth. After meeting
with Love and examining Wadsworth’s financial
records, Kidd found no evidence to support Love’s
allegations.

  On February 5, 1997, Love met with Albritton
and several Region 5 staff members, including
Cleggett, Kelley, and Kidd, to further voice her
concerns about adherence to IEPs. Love brought
several student IEPs to the meeting without
obtaining Albritton’s or the parents’ permission
to do so. Although all participants in the
meeting were authorized to see the IEPs, Kelley
informed Love that she had violated the Illinois
School Student Records Act, 105 ILCS 10/1 et
seq., by removing the IEPs from secure files at
the school. After the meeting, Cleggett,
Albritton’s immediate supervisor, directed
Albritton to discipline Love for bringing IEPs to
the meeting. The next day, Albritton wrote Love
a letter stating that she had violated board
policy by bringing IEPs of eight students to the
meeting. Albritton also met with Love concerning
this incident.

  Undeterred, Love filed a complaint with the
Department of Monitoring and Implementation
concerning what she perceived to be violations of
inclusion policies and IEPs. The Board sent an
attorney, Jay Kraning, to investigate Love’s
complaints. In a March 18, 1997, interview, Love
told Kraning that Albritton and 35 Wadsworth
staff members were sabotaging the inclusion
program. Love also made several accusations--some
of them inconsistent with later statements--
regarding the quality and amount of inclusion
training offered to the Wadsworth staff. After
interviewing a host of Wadsworth teachers and
administrators, Kraning came to a stark
conclusion: "Having read all of Mrs. Love’s memos
containing all of her accusations on imagined
injustices against her, as well as meeting with
her face to face and hearing her retell all of
her complaints and theories dating back to 1994,
I question her ability to perceive reality." Love
responded to Kraning’s investigation by lodging
a complaint against him with Lynn St. James, the
Board’s chief education officer. Love also
reiterated her complaints about inclusion and
related issues at an open board meeting on June
25, 1997.

  Love alleges that Albritton retaliated against
her for raising complaints about the
implementation of inclusion at Wadsworth. For
example, on February 19, 1997, 2 weeks after
Love’s meeting with the Region 5 staff, Albritton
observed the teachers on the third floor of
Wadsworth, including Love, as part of the annual
evaluation process. Albritton rated Love as
having strengths in 13 of the 14 areas he
assessed. He marked one area as a weakness,
however: "Complies with the policies, rules &
regulations of the school system & of the
building." Albritton observed Love’s classroom
again on May 28, 1997, this time finding
strengths in 34 of the 35 areas he examined. He
marked as a weakness only her attitude toward
cooperation with school personnel. Albritton
subsequently lowered Love’s overall performance
evaluation from "superior" to "excellent" in June
1997./1 Four other teachers had their ratings
lowered from "superior" to "excellent" for the
1996-97 school year, but Love was the only one of
the five to have complained about the
implementation of inclusion.

  Albritton’s alleged retaliation against Love
continued the following school year. Although
Love had been teaching the upper division at
Wadsworth for 6 years, Albritton shifted her to
a primary-through-intermediate position for the
1997-98 and 1998-99 school years against her
wishes. Albritton testified that he shifted Love
to fill a vacancy and that he considered her an
excellent teacher and the most suitable candidate
for the position. Eleven other Wadsworth teachers
were rotated from their preferred assignments for
the 1997-98 school year. Significantly, the Board
never sought to suspend or discharge Love, and
she continues to teach at Wadsworth to this day.

  Claudine Moore, our second plaintiff, came to
Wadsworth as a math facilitator in 1989, became
a fourth-grade teacher in 1992-93, and was
transferred to teach preschool in 1993-94. Moore
also lodged several complaints about Albritton.
For example, in 1992 she advised the Wadsworth
Local School Council that Albritton failed to
establish a Professional Problems Advisory
Council, as required by the School Reform Act.
Albritton subsequently set up such a council, but
when he failed to renew it in 1993 and 1994,
Moore renewed her complaints. In addition,
between 1995 and 1998 Moore raised several issues
with the Local School Council concerning
Albritton’s management of the school, including
the progress of the implementation of inclusion.
Albritton reportedly became furious with Moore
over these incidents and on more than one
occasion raised his voice at her during the
meetings. In February 1995 and February 1997
Moore spoke out against Albritton at open board
meetings, complaining about the manner in which
Albritton conducted the Local School Council
meetings and alleging that Albritton retaliated
against her for her previous complaints. She also
sent letters to Cleggett and Vallas complaining
of retaliation.

  Moore points to several incidents which she
says constitute retaliation for her complaints
against Albritton. In March 1993 Albritton
notified Moore that her performance evaluation
might be lowered because she left students
unsupervised in her classroom, she was
insubordinate, she failed to perform duties
relating to a child’s welfare, she was
chronically tardy, and she failed effectively to
use instructional time. Albritton subsequently
lowered her evaluation from "superior" to
"excellent" for the 1992-93 school year.

  Moore’s evaluations continued to decline the
following year. On May 6, 1994, Albritton noted
4 strengths and 26 weaknesses in a visit to
Moore’s classroom. According to Albritton, he
continued to have problems with Moore and, in
late 1994, was forced to request that the Board
terminate her. The Board issued a warning
resolution instead, on March 22, 1995, citing,
among other things, 70 incidents of tardiness
during the 1993-94 school year, insubordination
to the principal, and conduct unbecoming a
teacher, such as telling parents she would teach
their children nothing but the basics and
insulting a student by questioning how he made
the Honor Roll. Several months later, Albritton,
without explanation she says, had police escort
her from the school while she was teaching a
summer school session.

  Albritton’s dissatisfaction with Moore continued
in 1996. On May 2 he issued a notice of pre-
disciplinary hearing charging Moore with numerous
offenses, and shortly thereafter recommended that
she be terminated. A reviewing officer appointed
by the Board found substantiation for the charge
of insubordination, and Moore was suspended for
5 days without pay. A short time after her
return, on November 19, 1996, Moore became
involved in an altercation with the school nurse
and, less than one month later, was cited by
Velma Cooksey, the head teacher, for
disrespectful treatment of Cooksey in front of
parents and students.

  Albritton issued Moore an unsatisfactory
performance evaluation for the 1996-97 school
year and for each school year thereafter. Moore
filed a grievance after each such evaluation, and
each time her evaluation was changed to "no
rating" because Albritton failed to give Moore
the required notice of his intent to lower her
rating. Albritton did not permit Moore to teach
summer school in 1997 and suspended her again in
February 1998. During the 1997-98 school year, 9
of the 15 students who started in Moore’s class
were transferred to other classes because of
complaints from their parents about Moore.

  The final plaintiff, Willie Edwards, began
working as an instructional aide at Wadsworth in
August 1996 and, like Love and Moore, his
relationship with Albritton turned sour. In
November 1996 Edwards attended an inclusion
meeting for all staff at which Love got into a
heated argument with a school official. Edwards
claimed to have observed Albritton smiling as the
official yelled at Love and, taking exception to
this fact, sent a memo to Albritton expressing
his displeasure with the incident. Edwards
followed this up with three early 1997
complaints: (1) a complaint to two board members
regarding his treatment by Albritton and several
regular education teachers, as well as the
treatment of special education students by
regular education teachers, (2) a complaint to
Albritton concerning a lack of respect for the
inclusion program, and (3) a complaint to Vallas
concerning his treatment by Albritton. Edwards
also attended the June 1997 open board meeting in
support of Love.

  Like the other plaintiffs, Edwards was
disciplined by Albritton during the general time
periods in which he made complaints. In the fall
of 1996 and spring of 1997 Albritton placed three
written reprimands in Edwards’ mailbox accusing
him of tardiness. The problem continued the
following school year and, after a number of
additional reprimands failed to have any effect,
Albritton sent Edwards a notice of pre-
disciplinary hearing dated June 9, 1998, charging
that he had been tardy 35 times during the 1997-
98 school year, for an accumulated total of 7
hours and 38 minutes. Although Edwards disputed
the accuracy of many of Albritton’s charges and
cited his wife’s illness as a mitigating factor
for any occasion on which he admitted being late,
he was given a one-day suspension. Other tardy
employees were also suspended.

  In addition to the alleged punctuality problem,
Albritton noted several other deficiencies in
Edwards’ performance. In April 1997 the Board
received an anonymous complaint accusing Edwards
of transporting students without proper
authorization and giving candy and money to
students. After looking into the matter, the
Board’s director of investigations determined
that the transportation charge was meritorious.
Edwards testified that he gave rides to students
only at Albritton’s request and that he was told
all of the charges had been deemed unfounded.
Also in April 1997 Albritton reprimanded Edwards
for letting students into the building early and
in May 1998 reprimanded him for reading a
newspaper at an inappropriate time. Edwards
denied that he had let students into the building
early and contended that he read the newspaper as
part of a classroom exercise. As to many of these
incidents, Edwards testified that other members
of the Wadsworth staff committed similar
infractions but were not disciplined.

  Although the plaintiffs’ brief lists five issues
on this appeal, they really are making only two
claims: that the evidence in support of the
verdict against them was insufficient and that
the trial judge committed reversible error when
he permitted the jury to disband for the weekend
without consultation with the parties and without
giving admonitions to the jurors to refrain from
talking about the case while deliberations were
suspended. The first issue, given our standard of
review--we view the evidence in the light most
favorable to the winning party--is a dead-bang
loser. See Palmquist v. Selvik, 111 F.3d 1332,
1335 (7th Cir. 1997). The second issue gives us
some concern, but far from enough to order a
repeat performance of the trial.

  Because a verdict must stand unless no rational
jury could have found as it did, and because, as
we just said, we view the evidence in the light
most favorable to the verdict, see Emmel v. Coca-
Cola Bottling Co. of Chicago, 95 F.3d 627, 630
(7th Cir. 1996), the three plaintiffs here have
"a hard row to hoe." Sheehan v. Donlen Corp., 173
F.3d 1039, 1043 (7th Cir. 1999). And they would
lose this appeal even if the standard was less
difficult for a loser to surmount.

  A plaintiff bringing a sec. 1983 claim based on
First Amendment grounds must establish (1) that
his conduct was constitutionally protected and
(2) that his protected conduct was a substantial
or motivating factor in the challenged action by
the defendant. Johnson v. University of
Wisconsin-Eau Claire, 70 F.3d 469, 482 (7th Cir.
1995). Proof that the defendant was "brimming
over with unconstitutional wrath" against the
plaintiff is insufficient; rather, the plaintiff
must demonstrate that the challenged action would
not have occurred "but for" his constitutionally
protected conduct. Button v. Harden, 814 F.2d
382, 383 (7th Cir. 1987). Moreover, even if the
plaintiff clears this hurdle, a defendant can
still prevail if he proves, by a preponderance of
the evidence, that he would have taken the same
action even in the absence of a plaintiff’s
protected conduct. Johnson, 70 F.3d at 482.

  A wealth of evidence supports the jury’s
conclusion that any actions taken against the
three plaintiffs had nothing at all to do with
their protected conduct, or at least that such
actions would have occurred even in the absence
of protected conduct./2 With regard to Love, the
jury was certainly entitled to credit Albritton’s
testimony that Love’s performance evaluation for
1997 was lowered from "superior" to "excellent"
because she removed student IEP’s from the school
in violation of state law. The jury’s conclusion
that this was not a retaliatory action is further
supported by the fact that Albritton returned
Love’s evaluation to "superior" the following
school year, even though Love continued to speak
out against him. Moreover, Albritton lowered the
evaluations of four other Wadsworth teachers from
"superior" to "excellent" for the 1996-97 school
year, and none of the four had lodged complaints
against him.
  Love also claims that Albritton’s 1997 interim
evaluations of her--in which he rated her strong
in 13 of 14, and 34 of 35, areas--constitute
retaliation. Hogwash. First, it’s hard to see how
an evaluation that is so lopsided on the side of
adequate can be considered a black mark on Love’s
record. Also, the proximity of these evaluations
to Love’s improper removal of the IEPs, and the
areas in which Albritton rated her as weak
("[c]omplies with the policies, rules &
regulations . . ." and cooperation with school
personnel), are strong evidence that Albritton
merely was responding to Love’s misconduct.
Finally, the jury’s acceptance of Albritton’s
explanation for his decision to alter Love’s
assignment for the 1997-98 and 1998-99 school
years--that he filled a key vacancy with a strong
teacher--was fully justified, especially given
that 11 other teachers (out of 42) were rotated
away from their preferred assignments at the same
time. In short, the defendants produced more than
sufficient evidence that any actions taken
against Love--even if they were "adverse" job
actions, a stretch here--were wholly unrelated to
her complaints about inclusion.

  The same for Moore. Although she received poor
performance evaluations and was disciplined on a
number of occasions by Albritton, the evidence
shows that the defendants acted with restraint.
For example, Albritton became fed up with Moore’s
tardiness and insubordination as early as the
1992-93 school year, and recommended her
termination in 1994, but the Board responded only
with a warning resolution. The resolution
documented 70 incidents of tardiness during the
1993-94 school year, insubordination to
Albritton, and conduct unbecoming a teacher.
Insubordination was also cited as the reason for
Moore’s 1996 suspension. "We have consistently
held that an employee’s insubordination toward
supervisors and coworkers, even when engaged in
protected activity, is justification for [adverse
employment action]." Kahn v. United States Sec’y
of Labor, 64 F.3d 271, 279 (7th Cir. 1995). The
jury apparently believed, based essentially upon
its assessment of Albritton’s credibility, that
Moore was disciplined for insubordinate conduct,
and we find nothing in the cold record to impeach
that determination. Certainly the more than 50
percent rate of parents pulling their children
out of Moore’s classes during the 1994-95 and
1996-97 school years speaks ill of her teaching
ability and public relations skills. Accordingly,
the jury didn’t err in concluding that Moore was
disciplined for her performance, not for any
protected speech in which she engaged.

  Finally, the jury could reasonably have found
that defendants did not retaliate against
Edwards. Although he was disciplined in 1996 and
1997, the years he lodged complaints against
Albritton, nothing in the record contradicts
Albritton’s assertion that the sanctions were
imposed to address Edwards’ serial tardiness and
various other offenses. Albritton’s version of
events is supported by the fact that many of his
reprimands of Edwards took a written form,
including the June 9, 1998, notice of a pre-
disciplinary hearing which set out the precise
amount of time Edwards had been tardy during the
1997-98 school year (7 hours and 38 minutes). At
the very least, this contemporaneous
documentation of the charges against Edwards
proves that tardiness was not a pretextual
justification dreamed up after the filing of this
lawsuit. Although these written records do not
exclude every possibility of a well-planned plot
to retaliate, the jury was entitled to believe
Albritton’s straightforward assertion that
Edwards was disciplined purely for reasons of
substandard performance.

  For the second issue--whether the judge erred
by releasing the jury over the weekend without
informing the parties and without repeating an
earlier cautionary instruction not to discuss the
case--we need a little background.

  The trial began on April 25, 2000. Prior to a
short break that afternoon, the judge cautioned
the jurors not to discuss the case with the
attorneys. When the jurors returned from the
break, the judge clarified (or at least made an
attempt to clarify) his earlier instruction:
"[E]veryone feels more comfortable if you didn’t
say anything to anybody . . . . [Y]ou may just
nod, probably better that you not talk to
anybody, including, of course, you can’t talk
amongst yourselves about the case, so I stand
corrected, all right?" Neither this statement,
nor anything like it, was repeated when the jury
was excused for the evening on April 25. No
admonitions to the jury of a similar sort were
requested or given on either April 26 or 27.

  Prior to the beginning of the jury’s
deliberations on Friday, April 28, the judge gave
a number of instructions, including: "If you
recess during deliberations, follow all the
instructions that I have given you considering
your conduct during the trial; that is, if it
goes over to Monday." At 4:40 p.m. that day, the
jurors sent a note to the judge asking if they
could resume deliberations on Monday morning.
After receiving the note, the judge dismissed the
jurors without advising the parties of the note
and without giving cautionary instructions to the
jurors before they departed. Apparently the
attorneys were told after the fact on Friday that
the jurors were sent home with instructions to
return on Monday.

  On Monday morning, apparently feeling some heat
from the attorneys, the judge explained Friday
afternoon’s events. Albritton’s attorney
complained about not knowing of the note, and the
judge was asked to poll the jurors to see whether
they spoke among themselves or with anyone else
about the case over the weekend. The Board’s
attorney asked that they be polled as to whether
they read any materials that painted the Board in
a "negative light." (Whether or not there was any
"negative" material is a mystery as nothing
specific in that regard was called to the judge’s
attention.) The judge asked if the plaintiffs had
a position on the matter, and their attorney
responded that he considered it improper to poll
the jurors on what they may have read because
they had not been instructed earlier to avoid
reading newspapers. Plaintiffs’ counsel then
stated: "With respect to polling the jurors to
see if they have spoken among themselves or with
someone else, I have no idea what the case law is
on that issue but it would not seem to be the
diplomatic thing to do at this point in time."
The judge decided not to poll the jury, which
later returned its verdict in favor of the
defendants.

  Nobody exactly covered themselves with glory by
the way this matter was handled in the district
court or on this appeal, as fault can be found
with the judge and the attorneys for both sides.
But however it all shakes out, nothing occurred
that remotely suggests that the drastic step of
ordering a retrial of this case should be
considered.

  First, a note about notes. Deliberating juries
often send notes to trial judges. Ordinarily, the
content of those notes should be shared with the
parties, but a little common sense must be
exercised. A note, for instance, saying that
jurors prefer to have hamburgers from McDonald’s
brought in to the jury room over the lunch hour
rather than have their deliberations suspended
while they are taken to a restaurant hardly needs
to be shared with anybody. But notes that concern
important issues must always be shared, and
doubts about disclosures should always be
resolved by disclosing.

  In United States v. Widgery, 778 F.2d 325 (7th
Cir. 1985), we found it regrettable that a trial
judge had not shared with the parties a note
received by the judge from the jury accusing one
of the jurors of intoxication, along with another
asking what would happen if a verdict could not
be reached. Notes of this sort must always be
shared with the parties. The note in question
here falls closer to the McDonald’s luncheon
suggestion than to the notes received by the
judge in Widgery. But the note itself should
never have been necessary. Matters like the
length of deliberations on a Friday, and when a
deliberating jury will be excused for the
weekend, are things that should be resolved ahead
of time. Certainly, if the judge had told the
attorneys when the case was submitted that he
wanted to send the jurors home for the weekend
after four in the afternoon if they had not yet
reached a verdict, no one would have, or could
have, validly objected. It would have all been
ironed out and spread on the record, and the
issue would not be before us. So in that regard
we fault the judge for not addressing this matter
earlier and for compounding the problem by
sending the jury home for the weekend without
telling the lawyers, before the fact, that he had
done so. The judge also should have repeated, at
that time, a cautionary instruction to not
discuss the case outside the jury room over the
weekend.

  But the issue for us on appeal has no merit
because the objection to how things were handled
by the trial judge was made by the winners, not
the plaintiffs. On Monday morning, before
deliberations resumed, the record was opened to
state objections, and the plaintiffs sat silent,
let alone ask for a mistrial. Under the
circumstances, especially when there is
absolutely no evidence of prejudice to the
plaintiffs’ case, their present complaint must
fall on deaf ears.
  For these reasons, the judgment of the district
court is

AFFIRMED.


/1 Love’s performance evaluation was later changed
to "no rating" because Albritton failed to give
her advance notice of his intent to lower her
evaluation, as required by the union contract.
Albritton returned Love’s evaluation to
"superior" in June 1998.
/2 The implementation of inclusion at Wadsworth and
Albritton’s handling of Local School Council
meetings were matters of public concern, and
therefore Love’s and Moore’s complaints on those
subjects were protected by the First Amendment.
See Dishnow v. School Dist. of Rib Lake, 77 F.3d
194, 197 (7th Cir. 1996) (school guidance
counselor’s complaints concerning board’s
violation of open-meetings law deemed protected
speech). Although Edwards’ complaints were
focused primarily on personnel matters, and
therefore would not normally merit First
Amendment protection, Khuans v. School Dist. 110,
123 F.3d 1010, 1017 (7th Cir. 1997), we assume
for the purposes of this appeal that all
plaintiffs engaged in protected speech.
