Elena Diadenko v. MARY ANN FOLINO and THE BOARD OF EDUCATION OF THE CITY OF CHICAGO

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 12‐3091
ELENA D IADENKO,
Plaintiff‐Appellant,
v.
MARY A NN F OLINO and T HE B OARD OF E DUCATION OF THE
C ITY OF C HICAGO ,
Defendants‐Appellees.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:10‐cv‐02723 — John F. Grady, Judge.
____________________
A RGUED SEPTEMBER 10, 2013 — D ECIDED D ECEMBER 19, 2013
____________________
Before KANNE , WILLIAMS, and T INDER , Circuit Judges.
WILLIAMS, Circuit Judge. Soon after Elena Diadenko began
working at Schurz High School in 2009, she became aware of
various practices relating to Individualized Education Plans
for the school’s special education department that, in her
view, were problematic. After voicing her concerns to school
administrators, Diadenko wrote Chicago Mayor Richard M.

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2 No. 12‐3091
Daley and his office forwarded her letter to the Board of Ed‐
ucation for the City of Chicago (the “Board”). A Chicago
Public School investigator eventually looked into Diadenko’s
allegations, but in the interim Diadenko was twice suspend‐
ed for violating school policies. Diadenko believes she was
suspended because she reached out to the Mayor to express
her concerns about the special education department at
Schurz.
Diadenko and three other plaintiffs filed suit under 42
U.S.C. § 1983 against Schurz’s principal, Mary Ann Folino,
and the Board, alleging violations of their rights under the
First and Fourteenth Amendments and under Illinois law.
Diadenko specifically alleged that she was retaliated against
for speaking out about the special education department and
for refusing to engage in illegal activity occurring within the
school. The court granted Defendants’ motion for summary
judgment and Diadenko appeals.
The district court did not err in granting Defendants’ mo‐
tion because Diadenko failed to present evidence that Folino
was aware of her letter to the Mayor before taking discipli‐
nary action against her. Without evidence of knowledge on
Folino’s part, we cannot find that the letter motivated her
decision to discipline Diadenko, which is a key requirement
of a First Amendment retaliation claim. Diadenko’s chal‐
lenge to the award of summary judgment on her state law
claim also fails because she did not properly present the
facts upon which she bases her argument on appeal. There‐
fore, we affirm the district court’s rulings.

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No. 12‐3091 3
I. BACKGROUND
We take Diadenko’s factual submissions as true for pur‐
poses of summary judgment. See Kidwell v. Eisenhauer, 679
F.3d 957, 964 (7th Cir. 2012). In September 2009, Diadenko
began working as a special education teacher at Schurz High
School, a Chicago Public School. She became aware of prob‐
lems within the special education department on her first
day, when she learned that Schurz had recently failed a state
audit. The school failed in part because its Individualized
Education Plans (“IEPs”), or written statements detailing the
school’s plan for each student with a disability, were incor‐
rectly completed. Despite being in the department for only a
short time, Diadenko quickly concluded that the special ed‐
ucation department as a whole was doing “everything
wrong.” Specifically, Diadenko took issue with the fact that
parents were not given notice to attend the IEP meetings and
teachers were signing IEPs even though they did not attend
the meetings in which the decisions were made. Diadenko
first raised her concerns with Schurz’s Assistant Principal,
Debra Neiman. She told Neiman she felt that Schurz’s spe‐
cial education case manager was to blame for the depart‐
ment’s issues because she was underqualified and did not
put in the hours necessary to do her job well. Diadenko next
voiced her concerns with Principal Mary Ann Folino. Folino
told Diadenko not to worry about the case manager’s hours.
Dissatisfied with Folino’s response, Diadenko quickly took
her complaints outside the school walls and informed the
Illinois State Board of Education of the purported problems
within Schurz’s special education department.
Diadenko received a Golden Apple Award for excellence
in teaching in 2004, but her efforts were not so well‐received

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4 No. 12‐3091
at Schurz. Tensions began to build between Diadenko and
Schurz administrators early on, and the discord was only
just beginning. At a department meeting, Diadenko disa‐
greed with Neiman’s directive for teachers to include in all
IEPs that students were responsible for their own calcula‐
tors. Their exchange became heated and Neiman told Dia‐
denko to speak with her after the meeting. On October 21,
2009, Folino issued a Cautionary Notice to Diadenko, repri‐
manding her for disrupting the department meeting with
Neiman and missing another mandatory meeting. In defense
of her absence, Diadenko explained that she was busy at the
time communicating with the Illinois Department of Chil‐
dren and Family Services (“DCFS”) about a student. Folino
then reminded Diadenko that she was required to inform
Schurz administrators whenever she reported a student to
DCFS. Days later, Diadenko again landed in hot water when
she disclosed confidential information about students in
emails to unauthorized Schurz staff members and sent an
email to the entire special education department criticizing
Folino’s management style. On October 30, 2009, Folino gave
Diadenko a Notice of Pre‐Disciplinary Hearing to address
these incidents and, after the hearing, suspended Diadenko
for three days. Diadenko appealed her suspension to the
Board, but it upheld the suspension in January.
On November 28, 2009, Diadenko wrote a letter to Mayor
Daley detailing the problems within Schurz’s special educa‐
tion department. Notably, the parties did not include the let‐
ter in their materials presented to the district court on sum‐
mary judgment. So our knowledge of the contents of the let‐
ter is based solely on the Investigative Memorandum drafted
by Ray Poloko after his investigation into the allegations Di‐
adenko lodged in her complaint to the Mayor’s office. Ac‐

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No. 12‐3091 5
cording to Poloko’s memo, Diadenko’s letter complained
that Schurz students were not receiving the services required
by their IEPs, teachers were asked to write IEPs for students
they did not teach, staff members working with students
with IEPs were unaware of the students’ health needs be‐
cause they were not given copies of the students’ IEPs, and
administrators were using outdated tests to measure stu‐
dents’ achievement levels. She also voiced her opinion that
Neiman was not qualified to oversee Schurz’s special educa‐
tion department. Two days later, Folino gave Diadenko an‐
other Cautionary Notice, this time admonishing her for mak‐
ing inappropriate and discriminatory comments to another
teacher.1
The intervening winter holiday break did little to resolve
the conflict between Schurz administrators and Diadenko.
On January 4, 2010, Folino served Diadenko with yet another
Notice of Pre‐Disciplinary Hearing. The notice charged Dia‐
denko with refusing to attend a student evaluation meeting
and sending a letter containing a student’s confidential in‐
1 Diadenko asserts other facts for the first time on appeal. She alleges that
she contacted Chicago’s Inspector General Office before she was sus‐
pended in October 2009. Diadenko also asserts that, on December 14th,
she refused Folino’s request for her to attend an IEP meeting for a stu‐
dent she was no longer teaching. But Diadenko did not present these
facts to the district court, even after the court specifically requested a
supplemental statement of facts “identifying the communications that
[Plaintiffs] allege are protected by the First Amendment.” Therefore, we
will not consider them in our analysis. See Domka v. Portage Cnty., 523
F.3d 776, 783 (7th Cir. 2008) (recognizing the well‐settled rule that a party
failing to “inform the trial judge of the reasons, legal or factual, why
summary judgment should not be entered … cannot raise such reasons
on appeal”).

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6 No. 12‐3091
formation to the Local School Council’s community repre‐
sentative for Schurz. The hearing was held in early January
and, on January 22, 2010, Folino issued her summary of the
disciplinary hearing. In addition to the charges alleged in the
January 4th notice, Folino stated that her decision to disci‐
pline Diadenko was based on Diadenko’s repeated refusal to
attend special education meetings and the statement she
made during an appeal hearing likening Folino to “the Ital‐
ian Mafia” and a “Nazi concentration camp leader.” Folino
suspended Diadenko for ten days without pay in connection
with these charges and also recommended that the Board
issue a warning resolution against Diadenko, which the
Board did in May 2010.
The Mayor’s office referred Diadenko’s letter to the
Board, and on January 7, 2010—the same day the Board de‐
nied Diadenko’s appeal from her October suspension—
Chicago Public School investigator Ray Poloko was assigned
to respond to Diadenko’s allegations. Poloko interviewed
Diadenko by telephone on January 12, 2010, and a few days
later he met with the two representatives assigned to Schurz
from the Office of Specialized Services—the entity responsi‐
ble for the special education programs of the Chicago Public
Schools. The representatives responded to each of Diaden‐
ko’s allegations and found them mostly unfounded based on
their recent experience working with Schurz. On January 26,
2010, Poloko visited Schurz and spoke with Folino, the
school nurse, and several teachers Diadenko said would
support her allegations. Poloko found that two students
were not receiving the full services detailed in their IEPs, but
otherwise concluded that Diadenko’s allegations were un‐
supported by the evidence.

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No. 12‐3091 7
On May 3, 2010, Diadenko and three other Schurz‐
affiliated plaintiffs filed a complaint in federal district court
against Folino, the Board, and a third defendant who was
later dropped from the case. Plaintiffs sued pursuant to 42
U.S.C. § 1983, alleging that the defendants violated their
rights under the First and Fourteenth amendments. The
plaintiffs also filed claims under the Illinois Whistleblower
Act and other state‐law causes of action. The defendants
moved for summary judgment. The district court granted
the motion, finding that a reasonable jury could not find for
plaintiffs on any of their claims. Diadenko’s appeal followed.
II. ANALYSIS
Diadenko contends that the district court erred in award‐
ing summary judgment to Defendants on her First Amend‐
ment retaliation claim and her claim under the Illinois Whis‐
tleblower Act. Summary judgment is appropriate when “the
movant shows that there is no genuine dispute as to any ma‐
terial fact and the movant is entitled to judgment as a matter
of law.” Fed. R. Civ. P. 56(a). We review the district court’s
decision de novo and, as Diadenko was the non‐moving par‐
ty, we construe all facts and draw all reasonable inferences
in her favor. See Vargas‐Harrison v. Racine Unified Sch. Dist.,
272 F.3d 964, 970 (7th Cir. 2001).
A. Lack of Evidence of Folino’s Knowledge Dooms
First Amendment Retaliation Claim
Diadenko argues that her disciplinary suspensions were
a direct result of her speech about the alleged problems
within the special education department. Diadenko’s letter
to the Mayor is the only speech we will consider in our anal‐
ysis of her retaliation claim because it is the only speech

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8 No. 12‐3091
raised properly on appeal. We will not consider her state‐
ment to the Office of the Inspector General because this
speech was not presented to the district court. See, e.g., Puffer
v. Allstate Ins., 675 F.3d 709, 718 (7th Cir. 2012). Additionally,
we do not consider Diadenko’s internal statements to people
at Schurz because the district court found that these state‐
ments were not protected speech and Diadenko does not
challenge that finding on appeal.
The First Amendment, incorporated against the states
through the Fourteenth Amendment, shields government
employees from retaliation for engaging in protected speech.
Wackett v. City of Beaver Dam, Wis., 642 F.3d 578, 581 (7th Cir.
2011). In order to establish a First Amendment retaliation
claim, a public employee must show that: (1) she engaged in
constitutionally protected speech; (2) she suffered a depriva‐
tion because of her employer’s action; and (3) her protected
speech was a but‐for cause of the employer’s action. Id.
In order to conclude that her speech was protected, we
would have to determine that Diadenko wrote her letter as a
citizen speaking on a matter of public concern, and not pur‐
suant to her official responsibilities. See Garcetti v. Ceballos,
547 U.S. 410 (2006). The district court found that Diadenko’s
letter to the Mayor was protected speech. But de novo re‐
view requires us to reconsider this conclusion without defer‐
ence to the district court’s determination. Our inquiry is
frustrated by the fact that the parties did not introduce the
letter into the record before the district court. Fortunately,
we do not need to decide whether Diadenko’s letter was
protected by the First Amendment. Even if the letter was
protected speech, Diadenko’s claim still fails because she has

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No. 12‐3091 9
not presented evidence to show that the letter was the rea‐
son she was suspended.
To meet her initial burden of proof, Diadenko must
demonstrate that her speech was at least a motivating factor
in Folino’s decision‐making process. See Greene v. Doruff, 660
F.3d 975, 978‐79 (7th Cir. 2011) (concluding that once plain‐
tiff makes this showing, the burden shifts to defendants to
rebut with evidence that other factors influenced the deci‐
sion and the decision would have been made absent the
speech); see also Valentino v. Vill. of S. Chicago Heights, 575
F.3d 664, 670 (7th Cir. 2009). Even if her letter was a motivat‐
ing factor in Folino’s decision to suspend her, relief would
be inappropriate if another “dramatic and perhaps abrasive
incident” also influenced Folino’s decisions. See Mt. Healthy
City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 285–286
(1977) (“A constitutional principle at stake is sufficiently
vindicated if such an employee is placed in no worse a posi‐
tion than if he had not engaged in the conduct.”). Defend‐
ants argue that Diadenko’s disruptive behavior, offensive
and harassing statements to Folino and other staff members,
repeated refusals to participate in meetings, and disclosure
of students’ confidential information influenced Folino’s de‐
cisions to suspend Diadenko. We do not need to examine
these alleged intervening incidents, as Diadenko’s claim fails
because she has not met her initial burden of showing that
her letter was even a motivating factor for either of her dis‐
ciplinary suspensions.
Folino first suspended Diadenko on October 30, 2009.
Her letter to the Mayor was dated November 28, 2009, near‐
ly a month after her first suspension. The fact that Diadenko
did not write her letter to the Mayor until a month after she

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10 No. 12‐3091
was suspended is enough to convince us that the letter did
not influence Folino’s decision to suspend Diadenko in Oc‐
tober.
Nor does the record contain any evidence that the letter
motivated Diadenko’s second suspension in January 2010.
Diadenko argues that the proximity in time between her
November 28 letter to the Mayor and her second suspension
suggests that the letter influenced Folino’s decision to sus‐
pend her again. Adverse actions that follow “close on the
heels” of protected speech can give rise to an inference of
retaliation, but only if the person taking the adverse action
knew of the protected conduct. Kidwell, 679 F.3d at 966; see
also Wackett, 642 F.3d at 581–83 (finding summary judgment
appropriate on a First Amendment retaliation claim where
plaintiff could not show that defendants knew of the alleg‐
edly protected speech).
Diadenko does not provide any facts to support her as‐
sertion that Folino knew of her letter to the Mayor before de‐
ciding to suspend her. She argues that Folino became aware
of the letter in early December. In support, Diadenko points
to a conversation she had with a representative of Chicago
Public School’s Office of Specialized Service on December 8,
2009. She alleges that the representative was already aware
of Diadenko’s complaints to the Inspector General and the
Mayor, and Diadenko told her she was also planning to go
to the media. According to Diadenko, Folino “repeated word
for word” at a hearing the following day that she knew that
Diadenko had “reported her to Inspector General, that I’m
going to contact newspapers.” Diadenko Dep. p. 210.
This conversation does not factor into our analysis be‐
cause Diadenko did not raise it before the district court. Dia‐

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No. 12‐3091 11
denko did not mention these facts in her memorandum of
law opposing summary judgment, in her initial statement of
facts, or in her supplemental statement of facts submitted
after the court requested clarification of the facts relevant to
her First Amendment claim. Diadenko’s counsel argued at
oral argument that Folino’s alleged statement was presented
to the district court because it was part of Diadenko’s depo‐
sition. But we have long held that “a district court is not re‐
quired to scour the record looking for factual disputes [or] to
scour the party’s various submissions to piece together ap‐
propriate arguments. A court need not make the lawyer’s
case.” Little v. Cox’s Supermarkets, 71 F.3d 637, 641 (7th Cir.
1995) (internal citation omitted). Diadenko waived consider‐
ation of her alleged conversation with Folino on summary
judgment because she did not raise these facts in her sum‐
mary judgment materials.
But even were we to overlook Diadenko’s failure to pre‐
sent this fact before the district court, her testimony regard‐
ing her conversation with Folino would not save her claim
from summary judgment. Folino’s alleged December state‐
ment does not support Diadenko’s claim of retaliation be‐
cause it does not indicate that she was aware of Diadenko’s
letter to the Mayor before deciding to suspend her in Janu‐
ary. The statement only indicates that Folino was aware of
Diadenko’s comments to the Inspector General and her
threat to go to the media, but those issues are not properly
before us on appeal because Diadenko did not argue them
before the district court. Diadenko’s letter to the Mayor is the
only speech at issue on appeal, and Folino’s alleged Decem‐
ber statement does not support a finding that she was aware
of the letter. Diadenko did not make any other arguments to
support the claim that her letter factored into Folino’s deci‐

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12 No. 12‐3091
sions, and we will not make them for her. See Nelson v. Napo‐
litano, 657 F.3d 586, 590 (7th Cir. 2011) (recognizing that
courts are not “obliged to research and construct legal ar‐
guments for parties, especially when they are represented by
counsel”).
Because Diadenko has not pointed the court to any evi‐
dence that suggests that her letter to the Mayor motivated
Folino’s decision to suspend her in either October or Janu‐
ary, her First Amendment retaliation claim fails.
B. Facts Waived on Illinois Whistleblower Act Claim
Diadenko also asserts a claim under Section 20 of the Illi‐
nois Whistleblower Act. Section 20 provides:
An employer may not retaliate against an em‐
ployee for refusing to participate in an activity
that would result in a violation of a State or
federal law, rule, or regulation … .
740 ILCS § 174/20 (2009). Diadenko argues on appeal that
Folino asked her to participate in an IEP meeting for a stu‐
dent that Diadenko was no longer teaching. But she pro‐
vides no citation to the record for this assertion. See Seventh
Cir. R. 28(c) (“No fact shall be stated in this part of the brief
unless it is supported by a reference to the page or pages of
the record or the appendix where that fact appears.”). Nor
did she present this fact to the district court in her materials
opposing summary judgment. In fact, her argument on this
claim before the district court consisted of four lines and cit‐
ed no law or evidence on the record. The argument is there‐
fore waived. See Puffer, 675 F.3d at 718 (finding that argu‐
ments are waived on appeal if they are not raised at all or

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No. 12‐3091 13
are “underdeveloped, conclusory, or unsupported by law”
when raised before the district court).
It is too late now for an allegation that was never proper‐
ly raised below. “As we have said before, summary judg‐
ment is the put up or shut up moment in a lawsuit, when a
party must show what evidence it has that would convince a
trier of fact to accept its version of the events.” Springer v.
Durflinger, 518 F.3d 479, 484 (7th Cir. 2008). Diadenko’s claim
fails because she did not present any evidence that she re‐
fused to participate in illegal activity until now. Therefore,
we will not evaluate whether the alleged activity of having
Diadenko sit in on an IEP meeting of another teacher’s stu‐
dent was actually illegal or assess the merits of her claim that
Defendants retaliated against her for refusing to participate
in the meeting.
III. CONCLUSION
The judgment of the district court is A FFIRMED.

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