Case Information
*1 Before B AUER P OSNER , K ANNE , Circuit Judges . K ANNE Circuit Judge
. On January Local School charge Kozminski Community Acade my voted contract long tenured principal Lionel Bordelon. Bordelon, who time, believed supervisor Chief Area Officer Education City Chicago, Dr. Judith Coates, manipu lated exercised undue influence over Council’s deci sion. alleges Coates so because of his age, which, if true, violate Age Discrimination in Em ployment Act, U.S.C. § The granted judgment to Board Bordelon’s claim of discrimination. We affirm.
I. B ACKGROUND
A. Factual Background
In became Principal Kozminski Community Academy, a kindergarten through eighth grade school Chicago Public School system. Although Board Education City Chicago (“Board”) super vises schools within its system, Local School (“Council”) responsible for hiring, evaluating, ing contracts principals area. Board employs Chief Area Officer supervise principals assigned to his her area.
In October hired Coates serve Chief Area Officer Area making her supervisor. According Bordelon, immediately “began taking steps remove [him] from position at Kozminski.” (Ap pellant’s Br. 4.)
When began her new job, she inherited her predecessor list five six principals. According Ta wana Sanders, former executive assistant, list “older black principals disciplined.” Sanders called list included Bordelon; Lori Lennox, principal Doolittle Elementary; Mary Rogers, principal Em mett Till Academy. All three principals were charge schools were performing bottom Area schools.
In February 2010, Coates and Board fired Sanders. Sanders testified she “just felt that wanted someone younger brighter.” Brighter, she explained, meant replacement “has got more education, maybe she a field in position, she could do a better job.”
Coates’s efforts to remove Bordelon begin in ear ‐ nest until November 2010. On November 2010, Coates sent notice a pre discipline hearing based ‐ subordination from September through November notice contained following allegations: (1) failing to re spond to a parent issue raised November 2; (2) failing to comply with a request from September to set up a parent meeting October; (3) failing schedule a meeting quested October email regarding arrest sever al Kozminski students; (4) failing respond email November regarding resolution three aforementioned matters. As a result hearing, received five day suspension without pay, which he ap pealed never served.
On December Coates issued evaluation said he “needs improvement,” noting Kozminski was academic probation second year row test scores trending downward.
In December had meeting, ly five nine members attended. At meeting, Coun cil member Everhart testified “more less sug gested … [t]hat was time [Bordelon] give it up.” Everhart clarified, however, thought referring but Kozminski’s declining test scores.
Next, a letter dated December 29, 2010, reas ‐ signed Bordelon to home with full pay pending the outcome of investigation into the following misconduct: (1) im properly replacing asbestos containing tile Kozminski; (2) purchasing irregularities; and (3) tampering with school computers a manner impeded access to Kozminski’s records the Board. James Ciesel, deputy general counsel the Board, testified he intended to prepare dismissal charges depending on the resolution the investigation.
Instead, January 28, 2011, while was still suspended pay, the Council voted to renew Bor delon’s contract. Three members voted renewal, three voted favor renewal, and three abstained. Council informed decision to was based following reasons: (1) “[f]ailure to provide adequate principal reports” Council; (2) being evaluated “highly qualified”; (3) “not meet[ing] quirements needed effective safe school envi ronment”; (4) “[l]ow test scores”; (5) “[d]isciplinary prob lems”; (6) “[p]arents do feel you are open recep tive them.”
On February submitted his notice retirement effective June end non renewed contract.
*5 5 14 3240
B. Procedural History
On November Bordelon filed suit Board alleging (1) discrimination on basis of age in viola tion of Age Discrimination Employment Act (ADEA), 29 U.S.C. § 623; (2) discrimination basis of race vio lation Title VII, U.S.C. § 2000e U.S.C. § 1981; (3) retaliation violation Title VII, ADEA, U.S.C. § 1981; (4) constructive discharge; (5) deprivation due process.
The Board moved summary judgment all Bor delon’s claims, which district court granted. With spect Bordelon’s age discrimination claim, district court found evidence claimed direct proof age discrimination “do[es] support finding intent.” then filed motion reconsideration pointed more evidence he thought supported his age discrimination claim. district court excluded ad ditional inadmissible hearsay, lacking founda tion, too conclusory withstand summary judgment. This appeal followed.
II. A NALYSIS sole issue appeal whether district properly granted summary judgment
his claim age discrimination. We hold did.
We review court’s grant summary judgment de novo . Sartor Spherion Corp. *6 6 14 3240 2004). We view facts, all reasonable inferences drawn from those facts, light most favorable nonmoving party. Id. at A court’s evidentiary ruling strike certain factual allegations, however, “is viewed a deferential abuse discretion standard even a motion summary judgment.” Lucas v. Chi. Transit Auth. , 367 F.3d 714, 720 (7th Cir. 2004).
Summary judgment is appropriate “if movant shows there no genuine dispute as any material fact movant entitled judgment matter law.” Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett , 477 U.S. 322 (1986). This requires “there no genuine issue material fact,” “the mere existence some alleged factual dispute” will not defeat summary judgment. Anderson v. Lib erty Lobby, Inc. , 477 U.S. 247–48 (1986).
We made clear “[t]he supporting factual assertion represent admissible evidence.” Judson Atkinson Candies, Inc. v. Latini Hohberger Dhimantec , 529 F.3d (7th Cir. 2008) (emphasis added). “[C]onclusory statements, grounded specific facts, are sufficient avoid judgment.” Lucas F.3d 726; see also Gabrielle M. Park Forest Chi. Heights, Ill. Sch. Dist. 2003) (“Rule demands something more specific than bald assertion general truth particular matter, rather requires affidavits cite specif ic concrete facts establishing existence truth matter asserted.” (quotation marks omitted)). ADEA prohibits employer “discriminat[ing] any individual … because such individual’s age.” U.S.C. § 623(a)(1). Bordelon, however, sued
entity responsible renewing contract—the Coun *7 7 14 3240 cil [3] —instead choosing sue Board, relying on a “cat’s paw” theory of liability. See Staub v. Proctor Hosp. , 562 U.S. 411, 415–16 (2011).
Therefore, withstand judgment, point evidence upon which trier fact could con clude (1) harbored discriminatory animus based his (2) gave Council information influ enced its decision contract.
A. Discriminatory Motivation A plaintiff may prove discriminatory intent under ADEA by relying either direct method proof indirect method proof. [4] Atanus v. Perry , 520 F.3d 671 (7th Cir. 2008).
Under direct method proof, plaintiff may rely either direct circumstantial evidence show discriminatory motivation. Rudin v. Lincoln Land Cmty. Coll. , 420 F.3d 720–21 (7th Cir. 2005).
Direct evidence, which quite rare, is “an acknowledg ment intent defendant.” Id. (quoting Troupe v. May Dep’t Stores Co. , 736 1994)).
No. Circumstantial evidence evidence “allows trier fact to infer intentional discrimination deci sionmaker.” Id. (quotation marks omitted). We recog nized four types circumstantial evidence intentional discrimination:
(1) suspicious timing; (2) ambiguous statements or behavior towards other employees protected group; (3) evidence, statistical or otherwise, similarly situated employees outside protect ed group systematically receive better treatment; (4) evidence employer offered pre textual reason an adverse employment action. Dickerson v. Bd. Trs. Cmty. Coll. Dist. F.3d (7th Cir. 2011).
Because chosen to proceed direct method proof, he point admissible evidence, whether direct circumstantial, Coates’s motivation based on age. Evidence District Court Admitted
Before court—and appeal—Bordelon lied several pieces circumstantial he claims give rise inference discrimina tion. First, points Everhart’s testimony “more less suggested … [t]hat it was time [Bordelon] give it up.” This comment made meeting December 2010—shortly before it would vote whether contract. contends ambiguous statement akin company’s remarks “not keep[] employees until they reached sixty five.” Robinson PPG Indus., Inc. 1164–65 1994). This “express remark[] about Plaintiff’s age” suspicious timing, Bordelon argues, could lead trier fact to infer that Coates held an age animus. (Appellant’s Br. at 5.) statement not an express remark about Bor
delon’s age. Nor an ambiguous remark sufficient to give rise to an inference Coates was motivated age. Ever hart clarified thought this statement was referring the school’s poor academic performance, not Bordelon’s age. member Chantelle Allen testified Coates did not make any statements about age meet ing. statement made, unlike Robinson does even mention age. Coupled testimony Everhart Allen, no rational trier fact could draw inference was motivated discriminate based on age because this statement. also points Sanders’s testimony
had list five or six “older black principals disci plined.” This list does support inference intentional discrimination based on age. First, there was younger prin cipal included on list; Lennox only Second, two principals Sanders identified as having been list were both, like Bordelon, charge poorly performing schools. Third, Sanders testify as who other two three principals list were. Finally, mere fact older principals appeared list does support inference discrimination where most princi pals Area were older—only two sixteen principals were years old. offered no explana tion why these principals were list whether they merited discipline. Therefore, Sanders’s testimony about list does not give rise an inference age dis crimination by Coates.
Additionally, evidence that Coates favored younger workers, Bordelon relies Sanders’s testimony that Coates fired her replaced her someone “younger brighter.” Sanders explained, however, that she meant that her replacement “more education, or maybe she has field that position, she could do better job.” This testimony does not give rise an inference that Coates was motivated by age discrimination where Sanders expressly disavowed that she was replaced because her age. Instead, she testified that she was replaced by someone who could do better job. Her impression Coates wanted someone younger, without more, does not give rise inference intentional discrimination.
2. Evidence District Court Excluded Additional evidence cites appeal was ei ther excluded raised front district court. Because has argued appeal district court abused its discretion excluding following evi dence, he waived any argument about its exclusion ing improper. Lucas
Assuming arguendo had waived these arguments, abuse discretion excluding evidence, nor does directs us give rise inference motiva tion sufficient withstand judgment.
Sanders testified would “pick on” principals sixty years older “by saying their paperwork wrong.” Sanders testified “make ‐ negative remarks about older principals her team” but treat younger principals way. points the similar testimony Velma Cooksey, another older principal supervised by Coates. Cooksey testified “humiliated the only [sic] older principals” and “showed favoritism younger workers old ‐ er workers.”
In Lucas , we concluded district court did abuse its discretion in excluding statements supervi ‐ sor “treated African ‐ Americans ‘more harshly’ … [or] African Americans were asked change rail ties more fre ‐ quently, work longer sections track and were written up reasons non African Americans were not.” Lucas .
Cooksey’s Sanders’s testimony conclusory as testimony rejected in Lucas . Neither offers specific facts upon conclude treated older principals in dis criminatory manner. Instead, just like statements exclud ed Lucas Sanders Cooksey only offered sweeping generalizations about way protected class treat ed. Because this sufficient preclude sum mary judgment, abuse discretion excluding it.
Finally, points affidavit Clarice Berry, president Chicago Principals Administrators As sociation. Berry’s affidavit stated “Coates treated older principals, including Plaintiff, manner giving schools with older principals less support than schools with younger principals. I know discus sions I had older principals Area Younger princi 14 3240 pals did not mention me that they experienced lack curriculum support from Coates.”
Berry’s testimony is inadmissible hearsay properly excluded. Fed. R. Evid. 801(c), 802. argues Berry’s testimony is hearsay because falls under the exclusion from hearsay opposing party’s state ment. Fed. R. Evid. 801(d)(2). opposing party case the Board. Berry’s testimony comes from statements made by other principals Area alleged the Board adopted the other principals’ statements au thorized the principals speak behalf. Presumably, arguing these constitute statements made by Board employees “on matter within the scope rela tionship,” so their statements should be admissible Rule 801(d)(2)(D).
To fall within exclusion hearsay, however, statements made by other principals must within scope their employment relationship Board. “[N]ot everything relates one’s job falls within scope one’s agency employment.” Williams v. Pharmacia, Inc. , F.3d (7th Cir. 1998). An employee “need been personally involved action, but her duties encompass some responsibility related ‘the deci sionmaking process affecting employment action.’” Ste phens v. Erickson , F.3d (7th Cir. 2009) (quoting Simple Walgreen Co. 2007)).
In Williams we held complaints sex discrimi nation made five other female employees fall within Rule 801(d)(2)(D) because “[n]one women were agents [the defendant] purpose making mana gerial decisions affecting terms conditions their *13 13 own employment.” F.3d The same true this case. complaints bias made by the other princi ‐ pals do not fall within the scope their employment be ‐ cause they did have authority make managerial deci ‐ sions behalf the Board regarding their own employ ‐ ment. Accordingly, the exclusion hearsay Rule 801(d)(2) inapplicable, the district court properly ex ‐ cluded Berry’s testimony.
In conclusion, constructed “a convinc ing mosaic circumstantial [would] allow[] jury infer intentional discrimination by the decisionmak er.” Makowski v. SmithAmundsen LLC F.3d (7th Cir. 2011) (quotation marks omitted). Therefore, the properly granted judgment favor Board.
B. Influence Council’s Decision In order maintain suit Board Council’s decision, must also show Coates fluenced Council’s decision relying cat’s paw theory liability.
“[C]at’s paw liability may imposed employer where plaintiff can show employee discrimi natory animus provided factual information other input may affected adverse employment action.” Smith Bray 2012) (quotation marks omitted emphasis added). Because were decision makers case, Bor delon show bore animus influenced Council. point evi dence “that biased subordinate actually harbored dis criminatory animus victim subject em ployment action,” so cat’s paw theory liability cannot save case summary judgment. Johnson Koppers, Inc. 2013).
Furthermore, there substantial record had independent reasons choosing contract, making quite unlikely influenced decision. Accordingly, district court properly granted Board’s motion judgment.
III. C ONCLUSION
For foregoing reasons, judgment AFFIRMED.
[1] A majority all members Council constitutes a quorum vote renewal principal’s contract. ILCS 5/34 2.2(c). If a quorum present, contract be renewed, majority full membership vote favor renewal, which ordinarily six votes. Id. According Bordelon, however, there vacancy Council, meant only needed five votes.
[2] only appeals grant judgment respect claim discrimination.
[3] Council legal entity separate Board. ILCS 5/34 2.1. It follows then can sued own name its con duct renewing principal’s contract. See Asllani v. Bd. Educ. City Chi. F. Supp. 1219–20 (N.D. Ill. 1993).
[4] does rely indirect method proof, proceed familiar burden shifting framework McDonnell Douglas Corp. Green U.S. (1973).