Darreyl M. Young-Gibson v. Board of Education of the City of Chicago

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued April 29, 2014
Decided May 8, 2014
Before
WILLIAM J. BAUER, Circuit Judge
JOEL M. FLAUM, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
Nos. 13‐2465 & 13‐3140
DARREYL M. YOUNG‐GIBSON,
Plaintiff‐Appellant,
v.
BOARD OF EDUCATION OF THE
CITY OF CHICAGO,
Defendant‐Appellee.
Appeals from the United States District
Court for the Northern District of Illinois,
Eastern Division.
No. 11 C 8982
Virginia M. Kendall,
Judge.
O R D E R
Darreyl Young‐Gibson (“Young‐Gibson”) was hired as principal at Percy L. Julian
High School in Chicago but soon crossed swords with the Board of Education on a range
of issues. She was suspended twice, reassigned to an administrative post away from the
high school, and eventually fired. Young‐Gibson then sued the Board under Title VII of the
Civil Rights Act of 1964 and 42 U.S.C. § 1983. She claimed that the Board had fired her
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1

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because she is African American and female, and to retaliate for various protected
activities. Young‐Gibson also claimed that the Board had violated her right to due process
by reassigning her to the administrative post without notice and a hearing. The district
court granted summary judgment for the Board. On appeal Young‐Gibson abandons her
discrimination claims, but argues that her retaliation and due‐process claims should have
survived the Board’s motion for summary judgment because of what she describes as the
“temporal proximity” of events. (Although she filed two notices of appeal, they are
duplicative, and we have analyzed the two appeals as one.) We affirm the district court’s
judgment because Young‐Gibson introduced no evidence from which a jury reasonably
could conclude that the Board retaliated against her or that she suffered any economic
harm from being reassigned to an administrative post.
Young‐Gibson was hired as principal of Julian High School on a four‐year contract that
commenced in January 2008. That same month the CEO of the Chicago Public Schools
suspended “T.D.,” a Julian employee who was under investigation for “inappropriate
interactions” with students. Young‐Gibson wrote to the CEO, informing him that she
had independently found the allegations against T.D. to be “false, baseless, and
uncorroborated” and that she was therefore “rescinding” the suspension and “restoring
[T.D.] to his position” at the school.
Young‐Gibson then was summoned to a pre‐discipline hearing for repeatedly allowing
T.D. into the school during the investigation and for being “grossly insubordinate” to a
supervisor about issues of student safety. As a result Young‐Gibson received a 20‐day,
unpaid suspension in February 2008, and the Board of Education issued a resolution in
April warning her that she would be dismissed if the insubordination continued.
Meanwhile, CPS had announced in March 2008 that it was designating Julian as “on
probation,” the same status assigned the school the previous year under CPS’s “School
Probation and Remediation Policy.” Young‐Gibson was told that, as a result of Julian’s
probationary status, she could be removed as principal for failing to make adequate
progress in correcting deficiencies. See 105 ILL . C OMP . STAT. 5/34‐8.3(d).
Young‐Gibson responded by filing a charge of discrimination in April 2008 with
the Equal Employment Opportunity Commission and the Illinois Department of Human
Rights. She accused the Board of discriminating against her because of her race and sex and
in retaliation for advocating on behalf of an employee falsely accused of sexual harassment.

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Nos. 13‐2465 & 13‐3140 Page 3
Six months later, while Young‐Gibson’s administrative complaint remained pending,
she was summoned to another pre‐discipline hearing for “gross insubordination.” This
time she was suspended without pay for 10 days in December 2008 for “refusing to
respond” to a supervisor’s query about a counselor at the school and ignoring a
supervisor’s directive to reply to parents’ concerns regarding textbooks, lockers, and
student IDs.
Then in March 2009, the Illinois State Board of Education placed Julian on probation
because of the school’s “prolonged noncompliance with legal and regulatory requirements
in the area of Special Education Services” and noncompliance “in the area of Health/Life
Safety.” To “avoid any further recognition action,” the state agency warned, Julian must
correct its deficiencies by the end of the following school year.
Days after the state agency notified CPS of Julian’s probationary status, CPS
“temporarily reassigned” Young‐Gibson to an administrative post at a regional office. The
elected Local School Council with oversight over Julian recommended to the CEO that
Young‐Gibson be removed “for cause.” The CEO then informed Young‐Gibson that a
hearing would be conducted to determine whether she should be removed as principal and
her contract terminated. Weighing in favor of removal, the CEO told her, were Julian’s
probationary status and the warning the Board had issued her the previous year. After a
hearing in August 2009, the hearing officer concluded that state law permitted the Board
to remove Young‐Gibson as principal because “she was not adequately addressing the
issues that have chronically plagued Julian, in large part because of her failure or refusal
to work with her superiors.” See 105 ILL . C OMP . STAT. 5/34‐8.3. Two months later the Board
removed Young‐Gibson and terminated her contract.
Young‐Gibson sought review of the Board’s decision in the Circuit Court of Cook
County, also alleging that the Board had breached her employment contract. The circuit
court treated her request for administrative review as a petition for a writ of certiorari and
in October 2010 ordered her reinstated as Julian’s principal. But the Board took an
interlocutory appeal to the Appellate Court of Illinois, and in September 2011 the appellate
court reversed, confirming the Board’s decision to remove Young‐Gibson as principal
under 105 I LL . C OMP . STAT. 5/34‐8.3. Young‐Gibson v. Bd. of Educ. of City of Chicago, 959
N.E.2d 751, 764 (Ill. App. 2011). The appellate court rejected Young‐Gibson’s contention
that the Board had been required to, but did not, comply with 105 ILL . C OMP . STAT. 5/34‐85,
which governs the removal of Chicago teachers and principals for cause. Id. Rather, the
court concluded, the Board properly had followed the procedural requirements of

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§ 5/34‐8.3 in placing Julian on probation and then removing Young‐Gibson as principal. Id.
The Supreme Court of Illinois denied Young‐Gibson leave to appeal.
By then the EEOC had concluded its investigation and issued Young‐Gibson a right‐to‐
sue letter, more than three years after she filed her administrative charge. Young‐Gibson
then brought this pro se action in December 2011 alleging that she was fired because of her
race and sex. She also alleged that the Board had suspended, reassigned, and discharged
her in retaliation for protected activities. Her complaint mentions only Title VII, see 42
U.S.C. §§ 2000e‐2(a)(1), 2000e‐3(a), but the Board also understood Young‐Gibson to claim
that reassigning her to the administrative post at the regional office had violated her right
to due process.
The district court rejected the Board’s defense that Young‐Gibson’s claims were
precluded by the state‐court litigation; the court reasoned that only a final judgment has
preclusive effect and yet the state circuit court had never ruled on Young‐Gibson’s claim
for breach of contract. At summary judgment the Board understood the plaintiff to be
alleging that she was retaliated against for challenging the CEO’s suspension of T.D.,
sending staff to a special‐education conference, and filing her administrative charge of
discrimination. Young‐Gibson responded that she “was fired because she opposed and
exposed the discriminatory treatment of an African‐American male Julian employee.”
The district court sided with the Board at summary judgment. The court first
concluded that Young‐Gibson lacks evidence that would allow a jury reasonably to
conclude under the direct or indirect methods that she was discharged because of her race
or sex. Although Young‐Gibson had touted her successes as Julian’s principal—a grant the
school received from the Japanese Chamber of Commerce and increases in its graduation
rate and in scores on some standardized tests—the court reasoned that Young‐Gibson did
not dispute her repeated insubordination, her defiance of the CEO’s order suspending T.D.,
or her failure to make adequate academic progress on the deficits that led to Julian’s
probation.
On the retaliation claim, which Young‐Gibson tried to prove through the direct
method, the district court first concluded that the plaintiff’s letter to the CEO was not
protected activity under Title VII because that letter says nothing suggesting that
Young‐Gibson thought T.D.’s suspension was discriminatory. The court also rejected the
argument that her use of discretionary funds to send staff to a special‐education conference
was protected activity. That left her April 2008 administrative charge, which the court

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concluded was protected activity under Title VII. But the only evidence she submitted to
show retaliation was timing, the court said, and a jury could not reasonably conclude that
the timing was suspicious: Young‐Gibson’s first suspension preceded her administrative
charge, the Board imposed her second suspension 7 months after she filed the charge, and
she was fired another 11 months after that.
Finally, in granting summary judgment on the due‐process claim, the district court
reasoned that Young‐Gibson’s reassignment to the regional office did not affect a
constitutionally protected property interest because she continued receiving her full
principal’s salary and benefits. And although she asserted (without submitting any
evidence) that she lost her eligibility for a travel allowance when she was reassigned, the
court concluded that Young‐Gibson had not shown that she suffered any economic harm
as a result.
On appeal, only Young‐Gibson’s due‐process and retaliation claims are properly before
us. In her reply brief Young‐Gibson does mention her claim that she was fired because of
her race and sex. She also spoke about that claim at oral argument. Yet a claim mentioned
for the first time in a reply brief is waived, see George v. Kraft Foods Global, Inc., 641 F.3d 786,
790 (7th Cir. 2011); United States v. Lupton, 620 F.3d 790, 807 (7th Cir. 2010), and a claim that
has been waived cannot be revived at oral argument, see Fluker v. Cnty. of Kankakee, 741 F.3d
787, 791 n.3 (7th Cir. 2013); Veluchamy v. FDIC, 706 F.3d 810, 816–17 (7th Cir. 2013). Thus,
we decline to address Young‐Gibson’s arguments about her discrimination claim.
As an initial matter, the Board argues that the doctrine of claim preclusion bars
Young‐Gibson’s due‐process claim because she could have pursued that claim in the
state‐court litigation. (The Board did not try to assert claim preclusion as a bar to
Young‐Gibson’s retaliation claim until oral argument, which, as we’ve said, is too late.
See Fluker, 741 F.3d at 791 n.3; Baird v. Davis, 388 F.3d 1110, 1114 (7th Cir. 2004).) The
doctrine of claim preclusion applies in Illinois only if three prerequisites are established:
“(1) a final judgment on the merits rendered by a court of competent jurisdiction; (2) an
identity of the causes of action; and (3) an identity of parties or their privies.” Walczak v.
Chicago Bd. of Educ., 739 F.3d 1013, 1016 (7th Cir. 2014); see Cooney v. Rossiter, 986 N.E.2d
618, 621 (Ill. 2012). The district court rejected this affirmative defense, see Young‐Gibson v.
Bd. of Educ. of City of Chicago, No. 11 C 8982, 2013 WL 4606785, at *5 (N.D. Ill. Aug. 29, 2013),
on the understanding that the state‐court litigation was ongoing, a point that the Board
nowhere acknowledges in its brief. And as far as we can tell, the state litigation appears to
be pending even now. The Board does not assert any error in the district court’s reasoning

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that claim preclusion could not apply without a final judgment; thus, the Board has waived
any appellate argument about that analysis. See G & S Holdings LLC v. Cont’l Cas. Co., 697
F.3d 534, 544 (7th Cir. 2012); Crawford v. Countrywide Home Loans, Inc., 647 F.3d 642, 651–52
(7th Cir. 2011).
Young‐Gibson first argues that the district court erred in granting summary judgment
on her retaliation claim under the direct method of proof. She contends that her attempted
rescission of T.D.’s suspension was protected activity because, she says, “writing a letter
complaining of disparate treatment of an employee constitutes protected activity under
Title VII.” She says on appeal that she believed that T.D.’s suspension was discriminatory
because CPS had transferred to another position, instead of suspending, a Caucasian
teacher who was under investigation for allegedly molesting a male student. Yet
Young‐Gibson’s only evidence at summary judgment concerning her opposition to the
suspension was the letter she wrote to the CEO denouncing the treatment of T.D. as
“mean‐spirited, vicious, and malicious.” That letter does not even hint at a belief (by
Young‐Gibson or T.D.) that T.D.’s suspension was racially motivated.
Title VII makes it unlawful for an employer “to discriminate against any individual”
because of the “individual’s race, color, religion, sex, or national origin,” 42 U.S.C.
§ 2000e‐2(a)(1), or to discriminate against an employee because the employee has “opposed
any practice made an unlawful employment practice by [Title VII],” id. § 2000e‐3(a);
see Talanda v. KFC Nat. Mgmt. Co., 140 F.3d 1090, 1096 (7th Cir. 1998) (concerning claim of
retaliation based on plaintiff’s opposition to discrimination by employer against another
employee). Thus, a jury could not reasonably find that Young‐Gibson’s opposition to the
suspension was protected activity given that she submitted no evidence showing that she
had opposed the suspension because she believed reasonably and in good faith that it was
discriminatory. See Fischer v. Avanade, Inc., 519 F.3d 393, 409 (7th Cir. 2008) (explaining that
complaint to employer “must indicate” that “discrimination occurred because of sex, race,
national origin, or some other protected class” (quotation marks and citation omitted));
Tomanovich v. City of Indianapolis, 457 F.3d 656, 663–64 (7th Cir. 2006) (“[C]omplaining in
general terms of discrimination or harassment, without indicating a connection to a
protected class or providing facts sufficient to create that inference, is insufficient.”);
Johnson v. ITT Aerospace/Commcʹns Div. of ITT Indus., Inc., 272 F.3d 498, 501 (7th Cir. 2001)
(“[I]t is not actionable retaliation to discipline an employee for filing a frivolous charge
against the employer.”); Talanda, 140 F.3d at 1096.

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The Board suspended Young‐Gibson for the first time shortly after she challenged
T.D.’s suspension but before her other alleged protected activities; thus, her first
suspension could not have been retaliatory. She does not assert any error in the district
court’s conclusion that her decision to send Julian’s staff to a special‐education conference
was not a protected activity. That leaves her filing of an administrative charge of
discrimination, which the Board concedes is a protected activity.
Young‐Gibson maintains, without disputing the district court’s reasoning, that a jury
could reasonably find from the “temporal proximity” that her protected activities caused
the Board to retaliate against her. Although rarely sufficient on its own, suspicious timing
may be circumstantial evidence of retaliation. Kidwell v. Eisenhauer, 679 F.3d 957, 966 (7th
Cir.), cert. denied, 133 S. Ct. 489, 184 (2012); Leitgen v. Franciscan Skemp Healthcare, Inc., 630
F.3d 668, 675 (7th Cir. 2011). But the timing is not suspicious here. The significant delay
between the time that Young‐Gibson filed the administrative charge and her second
suspension (7 months), reassignment (11 months), and discharge (18 months) would
prevent a jury from reasonably concluding, based on “temporal proximity” alone, that the
Board retaliated against her for filing the charge. See Kidwell, 679 F.3d at 967 (“[E]xtended
time gaps alone militate against allowing an inference of causation based on suspicious
timing.”); Leonard v. E. Ill. Univ., 606 F.3d 428, 432 (7th Cir. 2010) (6 months between events
not suspicious); Argyropoulos v. City of Alton, 539 F.3d 724, 734 (7th Cir. 2008) (7‐week
interval not suspicious). Moreover, Young‐Gibson did not dispute that after she filed the
charge she continued to be insubordinate and that the state agency placed Julian on
probation for its failure to comply with special‐education and safety requirements. In light
of these significant intervening events, a jury could not reasonably accept Young‐Gibson’s
suspicious‐timing argument. See Kidwell, 679 F.3d at 967 (“[T]he evidence shows that
[plaintiff]’s own aberrant actions or other intervening circumstances led to the negative
responses.”); Davis v. Time Warner Cable of Se. Wis., L.P., 651 F.3d 664, 675 (7th Cir. 2011)
(same).
Young‐Gibson also argues on appeal that a slew of other “circumstantial” evidence
would allow a jury reasonably to conclude that the Board retaliated against her. She says
that it was “disingenuous” for the Board to reassign her to an administrative post before
students’ standardized test scores and grades were determined at the end of the school
year. She argues that the state agency “issued a bogus letter” in September 2008 stating that
Julian’s probationary status had worsened. She also appears to contend that Julian would
have corrected its deficiencies and avoided probation had the state agency not waited 18
months to issue a report of its March 2007 review of the school. This “suspicious deviation

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in policy” on the part of the state agency, she alleges, is somehow attributable to the Board.
Furthermore, she asserts, the Board’s failure to comply with the removal procedures of 105
ILL . C OMP . S TAT. 5/34‐85 is circumstantial evidence of retaliation. She also says that a
supervisor never evaluated the “principal performance goals” she developed or her
implementation of the CPS School Improvement Plan for Advancing Academic
Achievement. She asserts that a supervisor who disciplined her for failing to correct safety
issues was actually unconcerned about safety because the supervisor “coerced” her to
readmit a student who had threatened to bomb the school and shoot teachers. She also says
that a supervisor testified falsely at Young‐Gibson’s removal hearing that Julian had been
on probation for 4 years when Young‐Gibson became principal.
Young‐Gibson submitted no evidence in support of many of these assertions, some of
which she presents for the first time on appeal. None of this is evidence that the Board
retaliated against her. Moreover, the Illinois appellate court already has held that the Board
was not required to comply with the procedures of § 5/34‐85 when it discharged her.
Young‐Gibson, 959 N.E.2d at 764.
Young‐Gibson further argues that at a hearing in February 2013 the district court did
not give her “an opportunity to offer proof,” including “omitted deposition pages and
other documents in support of her case.” Discovery had closed four months earlier, and
Young‐Gibson never moved to extend discovery. Yet she says now that she wished to
submit additional evidence at the hearing but that the court ignored her while it discussed
other matters with opposing counsel. If she wished to submit additional evidence, she
should have filed a motion to that effect. 1
Finally, Young‐Gibson maintains on appeal that the Board violated her right to due
process when, without notice or a hearing, it reassigned her to the administrative post at
a regional office. By reassigning her, she says, the Board removed her as principal and
terminated her principal’s contract. Her contract, she contends, afforded her a
constitutionally protected property interest in continued employment as Julian’s principal
during the four‐year term of the contract. (She notes that the contract provides that
reassignment is one method by which the agreement could be terminated.) To prevail on
1 Young‐Gibson added at oral argument that she recently filed a motion in the
district court to supplement the record on appeal with additional testimony from her
deposition. The district court has not yet ruled on that motion, but we are confident that
the evidence, even if admissible on appeal, could not possibly be helpful.

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Nos. 13‐2465 & 13‐3140 Page 9
this claim, Young‐Gibson would have to establish a constitutionally protected property
interest that was taken away without due process. See Khan v. Bland, 630 F.3d 519, 527 (7th
Cir. 2010); Barrows v. Wiley, 478 F.3d 776, 780 (7th Cir. 2007).
Decisions from this court explain that a public jobholder with a contract guaranteeing
continued employment in a specific position subject to removal only for cause has a
property interest in fulfilling that contract in accordance with its terms. Bordelon v. Chicago
Sch. Reform Bd. of Trs., 233 F.3d 524, 530 (7th Cir. 2000); Head v. Chicago Sch. Reform Bd. of
Trs., 225 F.3d 794, 803 (7th Cir. 2000); Jones v. City of Gary, Ind., 57 F.3d 1435, 1440–41 (7th
Cir. 1995). Young‐Gibson was under contract to serve as principal at Julian for four years
but, in addition to being subject to removal for cause, also faced “removal, reassignment,
layoff or dismissal” because of the school’s probationary status. See 105 ILL . C OMP . S TAT .
5/34‐8.3, 5/34‐8.4. We could not find any decision, state or federal, discussing whether a
contract permitting an Illinois teacher or administrator to be reassigned or fired because
of a school’s probationary status nevertheless gives that employee a property interest in
continued employment in a specific position. But even if Young‐Gibson’s contract gave her
such an interest, the district court properly concluded that she did not present evidence
that would permit a jury reasonably to find that she suffered economic loss from the
reassignment. See Barrows, 478 F.3d at 780 (explaining that plaintiff must demonstrate that
deprivation caused “some economic loss” or “identifiable impact on [her] future income
or economic benefits”); Bordelon, 233 F.3d at 530 (“[T]o be actionable under the due process
clause, the deprivation of a public employee’s property interest in continued employment
must be more than de minimis.”); Swick v. City of Chicago, 11 F.3d 85, 87 (7th Cir. 1993)
(explaining that Due Process Clause does not protect “purely dignitary or otherwise
nonpecuniary dimensions of employment”). Young‐Gibson conceded that she received her
full salary until the Board discharged her after a hearing, and though she alleged that
during her reassignment the Board withheld a travel allowance available to principals, as
the court reasoned, she did not submit evidence showing that she experienced any
economic harm as a result. See Deen v. Darosa, 414 F.3d 731, 734 (7th Cir. 2005) (“[A] job
action that causes no pecuniary loss whatsoever does not implicate the Constitution.”).
Thus, the district court properly concluded that a jury could not reasonably find that the
Board violated her right to due process.
Young‐Gibson’s arguments on appeal lack merit. Accordingly, the judgment in appeal
No. 13‐2465 is AFFIRMED, and appeal No. 13‐3140 is DISMISSED.

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