MICHELLE FRAKES, Plaintiff-Appellant, v. PEORIA SCHOOL DISTRICT NO. 150, Defendant-Appellee.
No. 15-3091
United States Court of Appeals For the Seventh Circuit
ARGUED OCTOBER 26, 2016 — DECIDED SEPTEMBER 26, 2017
Before FLAUM, EASTERBROOK, and WILLIAMS, Circuit Judges.
The district court granted summary judgment in favor of Peoria, finding that Frakes failed to show that she engaged in any protected activity giving rise to a Section 504 claim. We agree. While Frakes provided some evidence that her “unsatisfactory” performance rating may have been unfair and her preferred teaching
In affirming the district court, we also reject Peoria‘s assertion that this case is barred by the doctrine of res judicata. Peoria waived this defense and agreed to defending lawsuits in both state and federal court by waiting over a year and a half to make a res judicata argument. That was too late.
I. BACKGROUND
A. Factual History
From August 2002 until May 2012, Frakes was a full-time special education teacher at Peoria. Beginning in August 2006, she was assigned to the Day Treatment Program, where she taught junior high (6-8th grade) students with various disabilities and behavioral and emotional disorders. All of Frakes‘s students were eligible for special education services under the Individuals with Disabilities Education Act (“IDEA“),
The events giving rise to Frakes‘s claim began in October of 2011, when Carolyn Nunn assumed the role of Assistant Principal of Day Treatment at Peoria and became Frakes‘s new supervisor. Nunn had worked as a speech-language pathologist for the school district for 18 years, was a qualified administrator, and had experience evaluating teachers. It was Nunn‘s responsibility to evaluate Frakes‘s performance. And, like all of Frakes‘s former supervisors,1 Nunn observed several deficiencies in Frakes‘s teaching performance.
On February 1, 2012, Nunn gave Frakes an overall performance rating of “unsatisfactory.” In her detailed evaluation, Nunn noted that Frakes struggled with classroom management and was often unprepared and unorganized in the classroom, for IEP meetings, and for faculty presentations. Nunn noted that Frakes did not collect data on her students’ performance at the expected frequency, specifically observing that for one student Frakes only had three data points for an 18-week semester. Nunn‘s evaluation also pointed out that Frakes arrived late to work, leaving her class unsupervised. When she was in class, Frakes‘s lack of classroom management skills left her classroom “lack[ing] order and discipline” and “extremely chaotic.” The evaluation listed several specific examples during one classroom observation, in which Nunn detailed that students “ignore[d]” Frakes, would not comply with her orders, and that Frakes‘s “inability to effectively manage her classroom results in a significant amount of valuable instructional time being wasted.”
When Frakes received this evaluation, she refused to sign it because she felt that the feedback was unfair. She contended that technology issues had affected her
Frakes hand-delivered her “Points for Rebuttal” to the District‘s Human Resources Department. Still, as a result of her “unsatisfactory” rating, Frakes was placed on a remediation plan. Frakes‘s remediation plan gave her directions to improve in the areas of deficiency noted in the evaluation. Before the remediation period could begin, however, she informed the District that she was unable to work due to serious health conditions, and she was placed on medical leave status for the remainder of the school year. During the 2011-2012 school year, neither Frakes, nor any parents, guardians, or other Peoria faculty filed an IDEA due process complaint or any formal complaint challenging a violation of a student‘s IDEA or Section 504 rights. There is no record that Frakes objected to anything in her students’ IEPs or BIPs or complained that Nunn‘s evaluations encouraged discrimination against disabled students.
On April 9, 2012, Frakes was honorably dismissed due to the school district‘s decision to reduce its teaching force. As a result of her “unsatisfactory” rating, Frakes, along with nine other full-time tenured teachers, was placed in “Group 2” on the “sequence of honorable dismissal list” in accordance with Illinois law. In the voluntary reduction of force, the Board of Education approved the dismissal of 54 teachers, including Frakes. Frakes received notice of her honorable dismissal in a letter dated April 10, 2012. Her last day of employment was on May 31, 2012.
B. Procedural History
On September 4, 2012, Frakes filed a complaint against Peoria in the Circuit Court of Peoria County in Illinois, asserting wrongful termination based on Section 24-12 of the Illinois School Code. She did not raise any federal claims in this lawsuit, and it was defeated at the summary judgment stage. The state court found that the District did not violate the Illinois School Code.
A week before her state case was filed, on August 28, 2012, Frakes filed this case against Peoria in federal court, claiming violations of Section 504. Specifically, she claimed that her “unsatisfactory” evaluation and subsequent honorable dismissal interfered with her ability to aid students in exercising their rights under Section 504. On April 9, 2015, Peoria moved for summary judgment. The district court granted judgment in favor of Peoria, finding that Frakes did not provide evidence that she engaged in activity protected by Section 504. Because it found summary judgment was appropriate, the district court did not address the District‘s res judicata argument. This appeal followed.
II. ANALYSIS
A. No Abuse of Discretion in Interpreting Local Rules
As an initial matter, Frakes challenges the district court‘s grant of summary
At the time Frakes filed her motion opposing summary judgment, Local Rule 7.1(D) stated that a party opposing summary judgment must “list by number each fact from ... the motion for summary judgment which is conceded to be material but is claimed to be disputed. Each claim of disputed fact must be supported by evidentiary documentation referenced by specific page.” Loc. R. 7.1(D)(2)(b)(2). Under the rule, a “failure to respond to any numbered fact will be deemed an admission of fact.” Loc. R. 7.1(d)(2)(b)(6). Frakes failed to follow Local Rule 7.1(D). In opposing summary judgment, she did not identify material and disputed facts as required. Instead, she listed admitted facts as disputed and added supplementary explanations to them (stating in her brief, “Plaintiff admits this matter, but has it listed as disputed.“). The district court noted that Frakes‘s violation of the rule impeded judicial economy, and found “[t]he failure to follow the Local Rules requires the Court to do an extensive scouring of the record to determine if these are actual disputed facts ... .” So, the court refused to consider Frakes‘s supplemental explanations to admitted facts and deemed “admitted, but disputed” facts to be simply admitted. We find the court made no error in doing so.
Contrary to Frakes‘s contention, Local Rule 7.1(D) does not conflict with
Even if Local Rule 7.1(D) was merely a “requirement of form” Frakes would have no recourse. A “local rule imposing a requirement of form must not be enforced in a way that causes a party to lose any right because of a nonwillful failure to comply.”
Where a local rule is substantive and not just a “requirement of form,” a district courts’ enforcement is entitled to even greater discretion. The Advisory Committee Notes (1995 Amendment) inform us that Rule 83(a)(2) does not diminish “the court‘s power to enforce local rules that involve more than mere matters of form—for example, a local rule requiring parties to identify evidentiary matters relied upon to support or oppose motions
Frakes further argues that the Advisory Committee considered and rejected a point-counterpoint requirement within
B. No Evidence Frakes Engaged in Protected Activity
We review the district court‘s grant of summary judgment de novo, applying the same standards as the district court and construing all facts and reasonable inferences in the light most favorable to Frakes. CTL ex rel. Trebatoski v. Ashland Sch. Dist., 743 F.3d 524, 528 (7th Cir. 2014). Summary judgment is appropriate if there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law. Id.;
Section 504 of the Rehabilitation Act,
Under the ADA anti-interference provision, it is unlawful to “coerce, intimidate, threaten, or interfere with any individual in the exercise or enjoyment of, or on account of his or her having exercised or enjoyed, or on the account of his or her having aided or encouraged any other individual in the exercise or enjoyment of, any right granted or protected by [the ADA].”
We first look to whether Frakes engaged in protected activity. Protected activities are those statutorily protected under the ADA, including opposing or complaining about discrimination based on disability. Common examples of protected activities are formal complaints of discrimination or reporting a public school‘s failure to provide a free, appropriate public education to students with disabilities.
Here, Frakes asserts that she engaged in protected activity when she refused to change her teaching methods following Nunn‘s negative performance evaluation. However, this ar-gument fails because there is no evidence that Frakes‘s opposition to Nunn‘s evaluation was an assertion of rights on behalf of her disabled students. While Frakes argues, for the purposes of this lawsuit, that her teaching methods were preferred for behaviorally and emotionally disabled students, the evaluation and Frakes‘s “Points for Rebuttal” do not reflect a dispute over the best teaching methods for disabled students. In fact, there is no mention of the students’ rights or interests at all. And, while we find no reason to doubt that it was Frakes‘s intention to best serve her disabled students, the law protects assertions of rights, not teaching methods. The fact that Frakes taught students who are protected by the ADA does not alone render her teaching “protected activity.”
The court need not evaluate whether Frakes‘s classroom strategy or teaching methods were, in fact, satisfactory. Even if there were evidence that Nunn‘s evaluation of Frakes was faulty or Nunn lacked qualifications as an evaluator, there is nothing in the record that indicates Frakes‘s teaching style would be protected under the ADA. Again, what Frakes was required to show is that she was asserting rights of disabled students or challenging disability discrimination. If Frakes had challenged Nunn‘s instructions because they violated a student‘s rights, such as by asserting that Nunn‘s instructions would force Frakes to violate the terms of a student‘s IEP, her claim might survive. But, that is not the case here. Frakes only argues that her teaching methods could be better for some students; this is subjective and lacks statutory protection. Because Frakes fails to demonstrate that she engaged in a protected activity, her Section 504 claim fails.
C. Suit Not Barred by Res Judicata
Peoria asserts that this suit is barred by res judicata because Frakes had a full and fair opportunity to litigate her Section 504 claims in a related state court case. We find that Peoria waited too long to raise the affirmative defense of res judicata. By waiting over a year and a half to raise this defense, Peoria acquiesced to claim splitting and res judicata does not bar Frakes‘s claims. See Lawler v. Peoria Sch. Dist. No. 150, 837 F.3d 779 (7th Cir. 2016).
III. CONCLUSION
For the foregoing reasons, the district court‘s grant of summary judgment is AFFIRMED.