Elena Diadenko v. Mary Folino, 741 F.3d 751

Background

In 2009 Elena Diadenko began as a special-education teacher at Schurz High School and quickly reported problems with IEP practices and staff qualifications.
After internal complaints to school administrators yielded no change, Diadenko wrote a November 28, 2009 letter to Mayor Richard M. Daley describing alleged failures in the special-education program; the Mayor’s office referred the letter to the Chicago Board of Education.
Prior to the letter, Diadenko received a three-day suspension (October 30, 2009) for disruptive conduct, disclosure of student information, and missing meetings; she later received a ten-day suspension (January 2010) after additional disciplinary proceedings.
A Chicago Public Schools investigator (Poloko) examined Diadenko’s allegations, found two instances of incomplete IEP services but otherwise largely unsupported the complaints, and concluded the special-education office’s review did not substantiate most claims.
Diadenko sued under 42 U.S.C. § 1983 (First and Fourteenth Amendment retaliation) and the Illinois Whistleblower Act; the district court granted summary judgment for defendants (Principal Mary Ann Folino and the Board), and Diadenko appealed.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Diadenko’s November 28 letter to the Mayor was protected speech and motivated Folino’s disciplinary suspensions	Diadenko: letter raised matters of public concern and motivated retaliation	Defendants: disciplinary actions were for independent misconduct; no evidence Folino knew of the Mayor letter when disciplining	Held: Even assuming the letter was protected, Diadenko failed to show Folino knew of it before disciplining, so no causal link; summary judgment affirmed
Whether temporal proximity supports inference of retaliation for January suspension	Diadenko: close timing (late Nov letter, Jan suspension) suggests retaliation	Defendants: plaintiff must show decisionmaker knew of protected speech; timing alone insufficient without knowledge	Held: Timing insufficient because no evidence Folino knew of the Mayor letter prior to the January discipline
Whether previously unraised facts (e.g., conversations, Inspector General contacts) can be considered on appeal	Diadenko: relies on deposition assertions and post-judgment factual allegations	Defendants: facts not presented to district court are waived	Held: Court refuses to consider facts not properly presented below; they are waived
Whether Diadenko preserved and proved a claim under the Illinois Whistleblower Act	Diadenko: alleges she was asked to participate in illegal IEP activity and refused	Defendants: plaintiff failed to adduce or cite evidence supporting the claim before the district court	Held: Claim waived for lack of presentation/record support; summary judgment affirmed

Key Cases Cited

Kidwell v. Eisenhauer, 679 F.3d 957 (7th Cir. 2012) (standard for construing facts for nonmoving party at summary judgment)
Wackett v. City of Beaver Dam, Wis., 642 F.3d 578 (7th Cir. 2011) (elements of First Amendment retaliation claim)
Greene v. Doruff, 660 F.3d 975 (7th Cir. 2011) (burden-shifting when plaintiff shows speech was a motivating factor)
Valentino v. Vill. of S. Chicago Heights, 575 F.3d 664 (7th Cir. 2009) (but-for and motivating-factor analysis in retaliation cases)
Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274 (U.S. 1977) (mixed-motive defense and alternative reasons for discipline)
Puffer v. Allstate Ins., 675 F.3d 709 (7th Cir. 2012) (issues not raised below are forfeited on appeal)
Vargas-Harrison v. Racine Unified Sch. Dist., 272 F.3d 964 (7th Cir. 2001) (deference rules and standards for summary judgment review)
Little v. Cox's Supermarkets, 71 F.3d 637 (7th Cir. 1995) (district courts need not scour records to construct arguments)
Nelson v. Napolitano, 657 F.3d 586 (7th Cir. 2011) (courts are not required to build legal arguments for parties)
Springer v. Durflinger, 518 F.3d 479 (7th Cir. 2008) (summary judgment as the ‘put up or shut up’ moment)
Domka v. Portage Cnty., 523 F.3d 776 (7th Cir. 2008) (failure to present arguments/facts to trial court bars raising them on appeal)