                              In the
    United States Court of Appeals
                For the Seventh Circuit
                           ____________

No. 03-2777
DIANE SMITH,
                                                Plaintiff-Appellant,
                                  v.

STEPHANIE DUNN, individually and as
principal of Edmund Burke School, and
CHICAGO SCHOOL REFORM BOARD OF TRUSTEES,1
                                             Defendants-Appellees.

                           ____________
             Appeal from the United States District Court
        for the Northern District of Illinois, Eastern Division.
              No. 01 C 8520—James B. Moran, Judge.
                           ____________
     ARGUED FEBRUARY 11, 2004—DECIDED MAY 11, 2004
                     ____________




 Before EASTERBROOK, KANNE, and WILLIAMS, Circuit
Judges.
  KANNE, Circuit Judge. Plaintiff Diane Smith brought this
action under 42 U.S.C. § 1983 against defendants Stephanie
Dunn and the Chicago School Reform Board of Trustees,


1
  The Chicago School Reform Board of Trustees is now known
simply as the Chicago Board of Education.
2                                                  No. 03-2777

alleging violations of her rights of free speech
and association pursuant to the First and Fourteenth
Amendments of the United States Constitution. The district
court found that Smith failed to raise a genuine issue of
material fact as to whether the discipline imposed on her by
Dunn was motivated by Smith’s speech. The court therefore
granted summary judgment to Dunn and the Board. We
affirm.


                          I. History
  Smith, a Board employee in the Chicago public school
system since 1974, taught fifth grade at Burke Elementary
School from 1997 until she retired in June of 2002. Dunn
has served as principal at Burke Elementary since July of
1998. Dunn reprimanded and disciplined Smith on several
occasions beginning in the 2000-01 school year. The moti-
vation for Dunn’s actions is the issue in this case.
  The first conflict between Smith and Dunn arose after
Smith failed to submit electronic grades in September of
2000. On September 18, before any of Smith’s allegedly
protected speech had occurred, Dunn sent Smith a memo-
randum reminding Smith of the change in school policy
(paper grade books were previously acceptable for sub-
mission). Smith wrote on the bottom of the memorandum,
which she returned to Dunn, that she had “no plans of
using computerized grades . . . [i]t is not a priority.” In addi-
tion to this reminder, Dunn warned Smith in October that
she must comply with the electronic grade policy or be
subject to discipline. Ultimately, Dunn conducted a hearing
on November 10, 2000 that resulted in Smith serving a one-
day suspension after she continued to refuse to comply with
the policy. Dunn testified that the reason for this suspen-
sion was Smith’s failure to submit electronic grades.
 Dunn also disciplined Smith for the stated reason that
Smith allegedly failed to properly supervise her students on
No. 03-2777                                                        3

several occasions. Office staff had reported that Smith was
not in the classroom when they attempted to reach her; the
students had to answer the calls made to Smith through the
intercom system. Dunn issued a written warning on
December 8, 2000, informing Smith that she had twice left
her students unattended. The warning noted that negligent
supervision “may result in disciplinary action that could
include suspension . . . .” Dunn, initiating disciplinary
proceedings on February 23, 2001, suspended Smith for two
days after Dunn found Smith’s students unattended for a
third time. Smith appealed this suspension, but the Board’s
hearing officer upheld the punishment.
   Most seriously, a student and her mother accused Smith
of physically abusing the student during a fifth-grade class
session. The student alleged that Smith, angry because she
thought the student was talking, grabbed her by the neck
and forced her to her feet. Next, Smith allegedly grabbed
the student’s arm and pulled the student outside the class-
room. Dunn removed Smith from the classroom during the
investigation of this incident. She was assigned to work
for the assistant principal for several months so that she
did not come into contact with children. Although the
Illinois Department of Children and Family Services and
the State’s Attorney declined to prosecute Smith, she was
suspended for five days in September 2001 after a Board
investigation.2


2
   “Because of differing legal standards and responsibilities, the
Chicago Public Schools reserves the right to discipline employees
for allegations of child abuse or neglect which are substantiated
by CPS investigations, even if these allegations are determined
‘unfounded’ by IDCFS.” Chicago Public Schools Policy, Section
511.1, available at http://policy.cps.k12.il.us/. Moreover, the Board
is not required to prove allegations beyond a reasonable doubt as
                                                     (continued...)
4                                                  No. 03-2777

  Besides these three substantial punishments, there were
three additional reprimands issued to Smith by Dunn
during Dunn’s tenure as principal. The first was a memo-
randum issued on September 25, 2000, reminding Smith to
sit at the lunch table with her students. The second mem-
orandum, written in January 2002, reprimanded Smith
for again failing to submit her electronic grade book in
December of 2001. The third memorandum, written on
February 6, 2002, informed Smith that the bulletin board
she had been assigned to decorate by February 1 was still
bare.
  Contrary to the stated justifications for each of the
punishments and reprimands listed above, however, Smith
asserts that Dunn’s treatment of her was motivated by a
desire to stop Smith from expressing herself on matters of
public concern. Along with her teaching duties, Smith par-
ticipated in the Professional Personnel Advisory Committee
(“PPAC”). PPAC advised Dunn and the Local School
Committee (“LSC”), a body that makes policy for Chicago
public schools. At an LSC meeting in October of 2000,
Smith expressed concerns about a lack of textbooks and
other materials at Burke Elementary. Smith alleges that
Dunn was very irritated by this criticism of her manage-
ment of the school. Smith also alleges that Dunn told the
school engineer to turn the lights off before Smith was
finished speaking and the public participation portion of the
LSC meeting had ended. Smith speculates that Dunn did
this to silence Smith and others waiting to comment on the
textbook difficulties, although the lights were turned back
on after it became apparent that individuals still wished to
speak.


(...continued)
the State’s Attorney would if criminal charges had been brought.
See Bd. of Educ. v. State Bd. of Educ., 497 N.E.2d 984, 993 (Ill.
1986).
No. 03-2777                                                 5

  In January of 2000, Smith ran for a position on the LSC.
The school held a “non-binding poll” to determine which
teacher would represent it at the LSC. Smith contested the
results; she lost by one vote to another Burke teacher.
Smith criticized Dunn’s management of the poll because
Dunn, complying with what she thought were the rules set
forth by the Board, withheld the results of the election until
they were certified by the Board. Smith also criticized the
actions of Board member William Davis, who monitored the
poll.
  Smith filed the lawsuit against Dunn and the Board un-
der 42 U.S.C. § 1983 on November 6, 2001. Smith alleged
that Dunn and the Board (through Dunn’s creation of
policy) unlawfully retaliated against her because she com-
plained about the lack of textbooks in October of 2000 and
the perceived irregularities in the teacher representative
election in January of 2000. The district court granted the
defendants’ summary judgment motions and Smith ap-
pealed.


                       II. Analysis
   We review de novo a grant of summary judgment; in do-
ing so, we construe all facts in favor of the non-moving
party. See Rogers v. City of Chicago, 320 F.3d 748, 752 (7th
Cir. 2003). Summary judgment is proper “if the pleadings,
depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, show that there is
no genuine issue as to any material fact and that the mov-
ing party is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(c) (2003).
  To state a claim under 42 U.S.C. § 1983 for retaliation
based upon the First Amendment, Smith must show that:
(1) her speech was constitutionally protected; and (2)
Dunn’s actions were motivated by Smith’s constitutionally
6                                                No. 03-2777

protected speech. Vukadinovich v. Bd. of Sch. Trs., 278 F.3d
693, 699 (7th Cir. 2002). If Smith establishes the two
prongs of the analysis, the burden shifts to Dunn to prove
that Smith would have been disciplined regardless of the
protected speech. Id. If Dunn carries that burden, Smith
bears the burden of persuasion to show that Dunn’s prof-
fered reasons were pretextual and that discrimination was
the real reason for the discipline. Id.
  We agree with the district court that Smith’s failure to
establish the second prong of Vukadinovich—whether her
speech was a “substantial factor” or a “motivating factor” for
the disciplinary actions taken by Dunn—is dispositive in
this case. See Pugh v. City of Attica, 259 F.3d 619, 629-30
(7th Cir. 2001); see also Smock v. Nolan, 361 F.3d 367, 370-
72 (7th Cir. 2004). Because Smith has failed to establish a
genuine issue as to Dunn’s motivation, we need not address
whether her speech was constitutionally protected, see
Sullivan v. Ramirez, 360 F.3d 692, 697-703 (7th Cir. 2004),
or whether the Board could have been held liable in this
case for the actions of Dunn, see Rasche v. Village of
Beecher, 336 F.3d 588, 597-601 (7th Cir. 2003).
  Smith primarily argues that because her uncontradicted
affidavit states that she had never been disciplined during
her teaching career prior to the 2000-01 school year, the
year in which she both publicly criticized Dunn and was
subjected to multiple acts of discipline, there must be
an issue for trial on Dunn’s motivation for the discipline.
Suspicious timing, however, is not enough to establish that
speech was a motivating factor for the discipline imposed by
Dunn. See Pugh, 259 F.3d at 630.
  Indeed, in this case, the timing is not very suspicious.
Each suspension and reprimand followed well-documented
cases of misconduct or insubordination. The reprimands
delivered in September of 2000 came before Dunn had ex-
pressed her views on the textbook issue at the LSC meeting
No. 03-2777                                               7

in October. Moreover, the discipline imposed during the
2001-02 school year, including the five-day suspension for
the student-abuse incident, came long after Smith’s criti-
cism of the textbook situation and her failed bid for a
position on the LSC in January of 2000. There is a closer
temporal link between the speech and the November of
2000 and February of 2001 suspensions. But this suspicious
timing by itself cannot create a genuine issue of material
fact.
  Smith’s additional arguments also fail to demonstrate
that Dunn was retaliating against her for her speech rather
than legitimately punishing her for misconduct. For one,
Smith claims that she was singled out for discipline while
other teachers who also failed to turn in grade books or
monitor their students were not disciplined. But the record
does not support this contention. The only evidence for this
assertion, Smith’s affidavit, relies on hearsay evidence
(purported declarations by another teacher that she had
turned in late grade books without being disciplined) and
provides no specific details to show that Smith and the
teachers she cites were similarly situated (such as when the
alleged improprieties by the other teachers occurred,
whether Dunn was aware of them, whether those teachers
were subject to the same requirements, and whether the
circumstances in the other teachers’ actions were similar to
those for which Smith was punished).
  Finally, Smith attempts to establish Dunn’s motivation by
denying that she made physical contact with the child
involved in the abuse allegations and quibbling over the
proper characterization of her other misconduct and in-
subordination. Dunn’s motivation, however, not the proper
factual understanding of Smith’s performance, is the issue.
See Smock, 361 F.3d at 371 (citing Waters v. Churchill, 511
U.S. 661, 679 (1994), for the proposition that unintentional
errors in assessing employees are not actionable under
§ 1983); see also Jordan v. Summers, 205 F.3d 337, 343 (7th
8                                              No. 03-2777

Cir. 2000) (noting that an employer’s reasons for taking an
adverse action may be “mistaken, ill considered, or foolish”
so long as the employer “honestly believed” those reasons).
Beyond conclusory allegations, Smith does nothing to show
that Dunn invented Smith’s misconduct or prompted the
student and her mother to falsely testify that Smith abused
the child.


                     III. Conclusion
  For the foregoing reasons, we AFFIRM the district court’s
grant of summary judgment.

A true Copy:
      Teste:

                        ________________________________
                        Clerk of the United States Court of
                          Appeals for the Seventh Circuit




                   USCA-02-C-0072—5-11-04
