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

No. 00-1469
JOHN S. SHOCKLEY,
                                             Plaintiff-Appellee,
                              v.

JACLYN M. SVOBODA, in her individual capacities,
                                         Defendant-Appellant.
                        ____________
          Appeal from the United States District Court
                for the Central District of Illinois.
           No. 94 C 1122—Michael M. Mihm, Judge.
                        ____________
     ARGUED JUNE 3, 2003—DECIDED AUGUST 19, 2003
                     ____________


  Before FLAUM, Chief Judge, and BAUER and EVANS,
Circuit Judges.
   BAUER, Circuit Judge. In 1994, Plaintiff John S. Shock-
ley filed a § 1983 lawsuit against Defendant Jaclyn M.
Svoboda, alleging that Svoboda violated his First Amend-
ment rights by instituting sexual harassment claims
against him following comments Shockley made to col-
leagues in the political science department at Western
Illinois University (WIU) that Svoboda was having an
affair with another professor. The district court deter-
mined that Shockley’s comments were best characterized
as “an internal grievance” and did not warrant First
Amendment protection because they did not involve a
2                                              No. 00-1469

matter of public concern. Accordingly, the district court
granted summary judgment to Svoboda on Shockley’s
§ 1983 claim, and Shockley does not appeal that judgment.
  In response to Shockley’s § 1983 suit, Svoboda filed
several counterclaims, including defamation, invasion of
privacy, intentional infliction of emotional distress, and a
violation of the Family Education and Privacy Rights
Act (FERPA), 20 U.S.C. § 1232g(b)(1), initiated through
§ 1983. The district court granted summary judgment in
favor of Shockley on Svoboda’s intentional infliction of
emotional distress and FERPA counterclaims in 1997 and
on portions of her defamation and invasion of privacy
counterclaims in 1999, finding that Shockley’s comments
to his colleagues were made within the scope of his employ-
ment. Svoboda later voluntarily dismissed her remaining
counterclaims, but reserved her right to appeal the dis-
trict court’s decisions as to her FERPA counterclaim and
whether Shockley’s comments were made within the
scope of his employment, which she now exercises. For the
following reasons, we affirm.


                    BACKGROUND
  During the 1992-93 academic year at WIU, Professors
Shockley and Crockett shared an office in the political
science department. Because Svoboda was a graduate
student at the time, working under Crockett’s super-
vision, the two were often seen together. On April 13, 1993,
Shockley attempted to enter his office, but found the door
locked with Crockett and Svoboda inside. The two claimed
to have inadvertently locked the door. Shockley then told
Crockett that he had received several complaints from
students that Crockett did not honor his scheduled office
hours and often let his classes out early. Crockett angrily
told Shockley to “mind his own business.”
No. 00-1469                                                  3

  Upset by Crockett’s reaction, Shockley took his con-
cerns to the department chairman, Professor Charles
Weston, and also expressed his belief that Crockett and
Svoboda were having an affair. Between April 14-16, 1993,
Shockley and other political science professors from WIU
attended the American Political Science Association’s
annual conference in Chicago where Shockley witnessed
Crockett and Svoboda enter a conference session together
late.
  When he returned from the conference, Shockley again
voiced his concerns to Weston and learned that Weston
had confronted Crockett and Svoboda, but the two had
denied having an affair. Apparently dissatisfied with
Weston’s response to the allegations, Shockley spoke with
four fellow professors from WIU’s political science depart-
ment (Phyllis Rippey, Dennis Hart, Fred Villenueva, and
Ahmed Sheikh) as well as the department secretary,
Debbie Wiley, about his concerns and asked whether he
should advise the University President. Shockley also
spoke with Svoboda’s boyfriend, Bradley Hix, a WIU grad-
uate student, and informed Hix of his suspicions.
  On May 18, 1993, Svoboda filed an internal grievance
with WIU, charging Shockley with sexual harassment for
relaying his suspicions to so many people, and on
October 18, 1993, she filed a charge with the Illinois
Department of Human Rights. Shockley then filed a
§ 1983 lawsuit in the district court in April 1994, alleging
a deprivation of his free speech because Svoboda filed
her charges in retaliation for his comments.1 Svoboda filed
state law counterclaims for defamation, intentional inflic-



1
  Again, the district court found that Shockley’s comments did
not deserve First Amendment protection because they did not
involve a matter of public concern, and Shockley did not appeal
that decision.
4                                                  No. 00-1469

tion of emotional distress, and invasion of privacy as well
as a § 1983 counterclaim for a violation of her right to
privacy under FERPA, which prohibits certain dissemina-
tions of student academic files. Svoboda claimed that
Shockley had accessed her WIU files during discovery
and relayed information contained in those files to his
attorney. Svoboda also asserted a Title VII sexual harass-
ment claim against WIU and Shockley but voluntarily
dismissed that claim against Shockley after this Court
held that an individual employee cannot be liable under
Title VII in EEOC v. AIC Security Investigations, Ltd., 55
F.3d 1276, 1281-82 (7th Cir. 1995).2
  The district court entered several orders in this case, only
two of which are relevant to this appeal. The first order,
entered on September 25, 1997, granted summary judg-
ment to Shockley on Svoboda’s FERPA claim, finding that
FERPA does not create a private right of action.3 The
court’s second order, entered December 29, 1999, granted
summary judgment to Shockley on portions of Svoboda’s
defamation and invasion of privacy counterclaims, finding
that Shockley’s statements to Weston, fellow WIU profes-
sors, and the department secretary were within the scope
of his employment.4 In making the second ruling, the court


2
  Svoboda later voluntarily dismissed her remaining sexual
harassment claim against WIU, pursuant to the district court’s
January 10, 2000, order.
3
  The district court also granted summary judgment to Shock-
ley in 1997 on Svoboda’s intentional infliction of emotional dis-
tress counterclaim, finding that his conduct was not extreme or
outrageous.
4
  The court’s 1999 order dealt with Svoboda’s defamation and
invasion of privacy counterclaims, each containing two parts,
only one of which is at issue here. First, Svoboda alleged that
Shockley’s comments to fellow faculty and the department
                                                  (continued...)
No. 00-1469                                                    5

relied upon affidavits from Weston, Donald Spencer, WIU’s
President, and Mark Dunn, an Illinois attorney and expert
witness on faculty reporting duties, all of which expressed
the opinion that Shockley was acting within the scope of
his employment when he reported his suspicions about
Crockett’s and Svoboda’s behavior because such report-
ing protects the integrity of WIU.
  Following its 1999 order, and upon agreement of the
parties, the district court dismissed Svoboda’s remaining
counterclaims on January 10, 2000, but Svoboda reserved
her right to appeal the above portions of the court’s 1997
and 1999 orders. Svoboda timely filed the instant appeal,
and seeks review of the district court’s decision with re-
spect to her FERPA claim and whether Shockley’s state-
ments to WIU personnel were within the scope of his
employment.


                         ANALYSIS
  As with any motion for summary judgment, our review
is de novo, and we view the evidence and draw all reason-
able inferences in favor of the non-moving party. Silk
v. City of Chicago, 194 F.3d 788, 798 (7th Cir. 1999).



4
  (...continued)
secretary at WIU amounted to defamation and invasion of privacy.
Second, she claimed that Shockley’s similar comments to two,
former WIU professors (made at the APSA conference in Chi-
cago) and to Hix were also wrongful.
   The district court denied Shockley’s motion for summary judg-
ment in its 1999 order on the second portion of Svoboda’s defama-
tion and invasion of privacy counterclaims, finding that genuine
issues of material fact existed as to the scope of Shockley’s
comments to the former WIU professors and Hix. Svoboda,
however, voluntarily dismissed those remaining claims, seen in
the district court’s January 10, 2000, order.
6                                                No. 00-1469

Summary judgment is appropriate “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
moving party is entitled to judgment as a matter of law.”
FED. R. CIV. P. 56(c) (2003).
   Svoboda’s first argument is that the district court improp-
erly found that Shockley’s comments to Weston, four of
his fellow professors, and Wiley were within the scope of
his employment, thereby defeating those portions of her
defamation and invasion of privacy counterclaims. The
Illinois Supreme Court has looked to the Restatement
(Second) of Agency § 228 to determine whether conduct
of an employee is within the scope of his employment.
Conduct is within the scope of employment if: 1) it is of
the kind the employee is employed to perform; 2) it oc-
curs substantially within authorized time and space li-
mits; and 3) it is actuated, at least in part, by a purpose
to serve the master. Pyne v. Witmer, 543 N.E.2d 1304, 1308
(Ill. 1989); see also Duffy v. United States, 966 F.2d 307,
314 (7th Cir. 1992). “Conversely, it is not within the scope
of employment if it is different in kind from that author-
ized, far beyond the authorized time or space limits, or
too little actuated by a purpose to serve the master.” Duffy,
966 F.2d at 314.
  In support of his motion for summary judgment, Shockley
submitted affidavits to the district court from Spencer,
Weston, and Dunn. Spencer’s affidavit stated that
    [t]he issue of consensual sexual relationships between
    university professors and students is an important
    concern for universities and such relationships may
    expose universities to a variety of legal claims. I expect
    professors at WIU not to engage in such relationships
    and professors who suspect such relationships must
    feel free to report such suspicions, and understand that
No. 00-1469                                             7

   in doing so they are acting within the scope of their
   employment.
Weston’s and Dunn’s affidavits echoed the statements of
Spencer, and Svoboda submitted no evidence to contradict
these assertions, relying only on her previous filings in
response to other motions before the district court. As a
result, we find that Shockley’s comments to fellow faculty
members about his suspicions of an affair were “of the
kind” that he was hired to perform.
  Likewise, these comments were made within the normal
time and space limits of his employment, in that they
were made to fellow faculty members during the aca-
demic year and close in time to one another. Finally, we
reach the issue of whether Shockley’s conduct was actu-
ated by a purpose to serve his master. On this point, the
only support Svoboda provides for her position is that
the deposition of Professor Dennis Hart, one of the four
professors to whom Shockley expressed his concerns,
opines that Shockley was not motivated by a concern for
institutional integrity or professionalism; that it was
Hart who provided Shockley with the idea that the uni-
versity’s image could be tarnished if Crockett and
Svoboda were having an affair. Svoboda claims that
Shockley was only out to “spread gossip” about her because
it was Hart who brought up the idea of professionalism
to Shockley.
  What Svoboda fails to give credit to, however, is pre-
cisely what the district court relied upon—namely that
Hart’s deposition testimony does not reveal that Shockley
was unconcerned with professionalism or WIU’s integrity.
Further, one of the other professors with whom Shockley
spoke, Phyllis Rippey, expressly testified at her deposi-
tion that Shockley raised only concerns about Crockett’s
professionalism. Given the evidence before the district
court, we find no error in the court’s decision that
8                                              No. 00-1469

Shockley’s comments to colleagues were actuated by a
purpose to serve his master and, therefore, that he was
acting within the scope of his employment.
   The district court also concluded that Shockley was act-
ing within the scope of his employment when he spoke
with Wiley. The court noted that Wiley was not within the
WIU chain of command as the department secretary,
but that she sat immediately outside of Weston’s office
and was in a “particularly advantageous position to ob-
serve what was going on in the department.” Wiley tes-
tified in her deposition that she had seen Crockett and
Svoboda together often, that she had received complaints
from students about Crockett’s unavailability and early
dismissal of classes, and that she had personally ob-
served Crockett returning late from lunches with Svoboda
when he had scheduled office hours. Wiley also testified
that Shockley expressed similar concerns to her about
Crockett’s lack of professionalism, as he had done with
other faculty members. Wiley, however, did not state
that Shockley spoke with her about the alleged affair or
that Shockley even mentioned Svoboda.
  We find, therefore, that the district court correctly
held that Svoboda failed to raise a genuine issue of mate-
rial fact with respect to Shockley’s comments to Wiley, in
part, because Svoboda did not rebut Wiley’s testimony.
Shockley’s comments to Wiley concerned Crockett’s profes-
sionalism, were made within the same time and space
limitations as his comments to fellow faculty members, and
were actuated by a purpose to serve WIU. Summary
judgment for Shockley was appropriate.
  Svoboda’s second argument is that the district court
improperly granted summary judgment to Shockley on her
FERPA claim brought under § 1983. FERPA prohibits
the federal funding of schools that have “a policy or prac-
tice of permitting the release of education records . . . of
No. 00-1469                                               9

students without the written consent of their parents to
any individual, agency, or organization,” with limited
exceptions. 20 U.S.C. § 1232g(b)(1) (2003). Svoboda as-
serts that during discovery in the district court, Shockley
impermissibly viewed her education records and turned
that information over to his attorney. Rather than assert
a direct violation of FERPA, Svoboda attempted to raise
her claim under § 1983 because the Supreme Court has
recognized that individuals may, at times, utilize § 1983
to enforce rights created by federal statute as well as the
Constitution. Maine v. Thiboutot, 448 U.S. 1, 9-10 (1980).
  Unfortunately for Svoboda, however, following the parties’
submission of the briefs in this case, the Supreme Court
held that § 1983 cannot be used to assert a FERPA viola-
tion. Gonzaga Univ. v. Doe, 536 U.S. 273, 290-91 (2002). As
the Court stated, “where the text and structure of a stat-
ute provide no indication that Congress intends to create
new individual rights, there is no basis for a private suit,
whether under § 1983 or under an implied right of action.”
Id. at 286. Further, “[w]ith this principle in mind, there
is no question that FERPA’s nondisclosure provisions fail
to confer enforceable rights.” Id at 287. Accordingly, the
district court did not err in granting summary judgment
to Shockley on Svoboda’s § 1983 claim for a FERPA vio-
lation.
  The judgment of the district court is AFFIRMED.

A true Copy:
      Teste:

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


                   USCA-02-C-0072—8-19-03
