In the

United States Court of Appeals
              For the Seventh Circuit

No. 08-2732

A NNA D ARCHAK,
                                                 Plaintiff-Appellant,
                                 v.

C ITY OF C HICAGO B OARD OF E DUCATION,

                                                Defendant-Appellee.


            Appeal from the United States District Court
       for the Northern District of Illinois, Eastern Division.
            No. 07-C-104—Robert W. Gettleman, Judge.



     A RGUED M AY 27, 2009—D ECIDED S EPTEMBER 3, 2009




 Before C UDAHY, R IPPLE and W OOD , Circuit Judges.
  C UDAHY, Circuit Judge. Anna Darchak is a Polish bilin-
gual teacher whose one-year contract with the Chicago
Public Schools was not renewed after a tumultuous
school year. Darchak claims that she lost her job
because she complained that the school principal was
violating the No Child Left Behind Act. She says the
principal’s hostility also stemmed from her animosity
toward people of Polish descent. Darchak filed this
2                                              No. 08-2732

lawsuit against the City of Chicago Board of Education
(Board), alleging, inter alia, retaliatory discharge, first
amendment retaliation and national origin discrimina-
tion. The Board offers several explanations for not re-
newing Darchak’s contract: insubordination, ineffective
classroom management and refusal to follow a teaching
schedule. Yet Darchak also offers evidence of discrimina-
tion.
  The district court granted the Board’s motion for sum-
mary judgment. We affirm the dismissal of Darchak’s
retaliatory discharge and first amendment retaliation
claims. However, because she has put forth sufficient
evidence of discrimination to reach a jury, we reverse
on her national origin discrimination claim.


                             I
  Anna Darchak moved to the United States from Poland
in 1991. Three years later, she began working for the
Chicago Public School system (CPS) at Taft High School,
where she taught in the Bilingual and English as a
Second Language (ESL) program. She resigned from her
post at Taft in 2002 and took a job with the CPS Office
of Language and Cultural Education (OLCE).
  At the beginning of the 2004 school year, Darchak began
providing ESL support to English Language Learn-
ers—students at CPS schools whose native language
was not English. One of these schools was the Princeton
Alternative Center, an elementary school in Chicago. By
February 2005, Darchak was working at Princeton five
No. 08-2732                                               3

days a week as an ESL and Polish-bilingual teacher. At
that time, most of the students enrolled at Princeton
were Hispanic (77%); there were also African-American
(17%) and Polish (6%) students.
  Princeton Principal Rosalva Acevedo hired Darchak as
a full-time teacher for the 2005–2006 school year in antici-
pation of an increase in Polish-speaking students.
Darchak’s status in this new job was that of a Probationary
Appointed Teacher, and she had a one-year contract,
renewable at the end of the school year. Her position
was funded by OLCE and was dependent on the number
of English Language Learners at Princeton.
  Darchak claims that within the first month of her full-
time employment at Princeton, she noticed that the His-
panic students were receiving better treatment than the
Polish students: Hispanic students were given better
resources and native language services. When Darchak
approached Acevedo with her concerns, Acevedo
allegedly responded, “[Hispanic students] are better than
Polish and deserve more than Polish people. . . . [I]f you
don’t want to do whatever I tell you to do, you can
leave my school.” At the time, Darchak did not tell
anyone about Acevedo’s remarks. Then, in early Novem-
ber, Acevedo gave Darchak a “cautionary notice” charging
her with “insubordination” for refusing to follow the
ESL teaching schedule. When Darchak confronted
Acevedo about the notice, Acevedo allegedly replied,
“I brought you to this school and you stupid Polack
pushed the teachers against me.”
  Darchak immediately began complaining to Acevedo’s
supervisors in meetings and letters about what she per-
4                                            No. 08-2732

ceived as Acevedo’s mismanagement of the school. In
none of this communication, however, did she mention
Acevedo’s disparaging remarks about Darchak’s national
origin. Though not at issue on appeal, Darchak also
claims that, as a result of Acevedo’s discrimination, she
sought treatment for depression and anxiety beginning
in November 2005.
  In March 2006, a teaching position opened in Room 206,
a classroom with a number of English Language Learners,
most of whom were native Spanish speakers. Acevedo
checked with the CPS Accountability Department
to determine whether Darchak was qualified to tempo-
rarily teach the students in Room 206. After confirming
Darchak’s qualifications, Acevedo assigned her to the
classroom on a temporary basis.
  Darchak felt that her assignment to Room 206 violated
the federal No Child Left Behind Act because she was not
qualified to teach in a bilingual Spanish classroom. She
repeatedly expressed this concern to Acevedo and to
Acevedo’s supervisors. On March 10, Darchak received
a second cautionary notice, which said that she had been
discourteous and negligent in supervising her students.
This notice was followed by a negative performance
evaluation, which stated that Darchak had difficulty
following rules, interacting with students, and getting
along with other school community members.
  Acevedo had received word in February that funding
for Darchak’s position would not be available from
OLCE for the following school year because of declining
enrollment. In mid-March, the Board asked Acevedo
No. 08-2732                                              5

which Probationary Appointed Teacher contracts she
wanted to renew for the next school year. Despite the cut
in funding, Acevedo chose to renew the contracts of
several probationary teachers, including that of another
Polish teacher. Acevedo could have renewed Darchak’s
contract with funding from Princeton’s discretionary
budget. 1 Acevedo did not recommend renewing Darchak’s
one-year contract, and the Board accepted Acevedo’s
recommendation. In April Darchak took a leave of
absence that she attributed to stress. She never returned
to Princeton. Darchak was officially terminated on
August 31, 2006.
  Darchak filed this lawsuit in January 2007, naming the
Board as the sole defendant. Darchak’s complaint alleged
retaliatory discharge, a common law tort under Illinois
law; retaliation for exercising her first amendment
rights in violation of 42 U.S.C. § 1983; national origin
discrimination in violation of Title VII of the Civil
Rights Act of 1964, 42 U.S.C. §§ 2000e-17; and disability
discrimination in violation of the Americans with Disabili-
ties Act (ADA), 42 U.S.C. §§ 12101–12213. The district
court granted summary judgment for the Board.
Darchak appeals her retaliatory discharge, first amendment
retaliation and national origin discrimination claims; she


1
  Darchak was one of 1,062 Probationary Appointed Teachers
whose contracts were not renewed for the 2006–2007 school
year; the record does not indicate how many contracts were
renewed. Princeton’s discretionary budget for the 2005–2006
school year was approximately $350,000. Darchak’s yearly
salary was about $80,000.
6                                               No. 08-2732

does not challenge the dismissal of her ADA claim, and
therefore we do not disturb that ruling.


                             II
                             A
  To begin, Darchak claims that the Board refused to
renew her teaching contract in retaliation for her com-
plaints that her teaching assignment in Room 206 vio-
lated the federal No Child Left Behind Act. This claim is
styled as an Illinois retaliatory discharge claim, cognizable
here under our supplemental jurisdiction. 28 U.S.C.
§ 1367(a).
  To establish a retaliatory discharge, Darchak must
demonstrate that she was “(1) discharged; (2) in retaliation
for her activities; and (3) that the discharge violates a
clear mandate of public policy.” Blount v. Stroud, 

, 9 (Ill. 2009) (citations omitted). Darchak’s
claim fails the first and third of these requirements.
   First, Illinois courts evaluating retaliatory discharge
claims have refused “to recognize a claim in any injury
short of actual discharge.” Bajalo v. Northwestern Univ.,

, 561 (Ill. App. Ct. 2006). “Actual discharge”
means termination of an “at-will” employee—one
whose employment has a nonspecific duration that can
be terminated for any reason—not nonrenewal of a fixed-
term employment contract. Krum v. Chi. Nat’l League Ball
Club, Inc., 

, 624 (Ill. App. Ct. 2006). Indeed,
Illinois appellate courts have expressly refused to
extend the reach of the retaliatory discharge tort to
No. 08-2732                                                     7

cover the nonrenewal of a fixed-term contract. 

see also 

–63.2 Darchak had a
fixed, one-year contract with the school district. It is
therefore highly unlikely that the Illinois Supreme
court would permit her to bring a retaliatory discharge
claim.
  Yet Darchak’s retaliatory discharge claim fails in any
event because the nonrenewal of her contract did not
violate “a clear mandate of public policy.” Although what
counts as a clearly mandated public policy is not
precisely defined, see, e.g., Palmateer v. Int’l Harvester Co.,

, 878–79 (Ill. 1981); Carty v. Suter Co., Inc.,

, 774 (Ill. App. Ct. 2007), the tort has been
narrowly construed in Illinois to include only discharges
in retaliation for certain activities, such as reporting an
employer’s criminal violations, 

, or violations of health and safety standards, Wheeler v.
Caterpillar Tractor Co., 

, 377 (Ill. 1985). See
also Kelsay v. Motorola, Inc., 

, 357–58 (Ill.


2
  The Illinois Supreme Court has not addressed this question,
and we therefore look to decisions by the state’s intermediate
appellate courts for guidance. See Goetzke v. Ferro Corp., 

, 773 (7th Cir. 2002). The Illinois Supreme Court has
addressed putative retaliatory discharge claims brought for
other forms of termination or demotion, and rejected them. See
Zimmerman v. Buchheit of Sparta, Inc., 

, 882 (Ill.
1994) (finding that retaliatory demotion was not a chargeable
tort); Hartlein v. Ill. Power Co., 

, 730 (Ill. 1992)
(holding that constructive discharge could not support a
retaliatory discharge claim).
8                                                No. 08-2732

1978). The Illinois Supreme Court has defined “public
policy” only within these limited bounds and thus “has
consistently sought to restrict the common law tort of
retaliatory discharge.” Fisher v. Lexington Health Care, Inc.,

, 1121 (Ill. 1999) (citing Buckner v. Atlantic
Plant Maintenance, Inc., 

, 569 (Ill. 1998)).
  The “public policy” that Darchak cites is found in the
general purpose declaration of the No Child Left Behind
Act: “that all children have a fair, equal, and significant
opportunity to obtain a high-quality education.” 20 U.S.C.
§ 6301. Darchak maintains that the Polish students at
Princeton did not have the same access to a “high-quality”
education as the Hispanic students did. Educational
quality is doubtless an important social objective,
but Illinois courts have never recognized a claim for
retaliatory discharge based on a reported violation of
that policy or any like it, nor do we have reason to
believe that they would do so in an appropriate case. We
therefore affirm the dismissal of Darchak’s retaliatory
discharge claim.


                              B
  Second, Darchak raises a first amendment retaliation
claim under 42 U.S.C. § 1983. She argues that the Board
failed to rehire her in retaliation for her complaints that
Acevedo was violating the No Child Left Behind Act.
Even assuming that Darchak’s complaints are constitu-
tionally protected speech, see Milwaukee Deputy Sheriff’s
Ass’n v. Clarke, 

, at *4 (7th Cir. 2009), which
in itself is not at all clear, this claim fails for a more
No. 08-2732                                                   9

basic reason. Acevedo has not been named as a defen-
dant. The doctrine of respondeat superior is unavailable
under § 1983, Monell v. Dep’t of Soc. Servs., 

, 694
n.58 (1978), so in order for Darchak’s retaliation claim to
succeed, she must present evidence that the Board itself
violated her civil rights. Municipal agencies can be found
liable under § 1983 for violating a plaintiff’s civil rights
through “(1) an express municipal policy; (2) a widespread
practice constituting custom or usage; or (3) a constitu-
tional injury caused or ratified by a person with final
policymaking authority.” Simmons v. Chi. Bd. of Educ., 

, 494 (7th Cir. 2002) (citing Kujawski v. Bd. of
Comm’rs, 

, 737 (7th Cir. 1999)); see City of St.
Louis v. Praprotnik, 

, 127 (1988) (opinion of
O’Connor, J.). Darchak relies exclusively on an assertion
that Acevedo was a final policymaker.
  We agree with the district court that Darchak has
failed to present evidence of Acevedo’s final authority
over the nonrenewal of Darchak’s contract. State law
determines who legally constitutes a final policymaker,
McMillian v. Monroe County, Ala., 

, 786 (1997)
(citations omitted), and Illinois law clearly assigns re-
sponsibility for personnel decisions to the Board, not to
individual school principals: “The right to employ, dis-
charge, and layoff shall be vested solely with the
board . . . .” 105 ILCS 5/34-8.1; see also Duda v. Bd. of Educ.,

, 1061 (7th Cir. 1998) (“Nothing in the
School Code allows us to infer that a . . . principal has
been delegated policymaking authority with respect to
personnel decisions.”) (citation omitted).
10                                           No. 08-2732

  Darchak argues that, despite the absence of express
authority, Acevedo is a de facto final policymaker
because the Board accepted Acevedo’s recommendation
not to renew Darchak’s contract without performing an
independent review. However, “liability requires more
than the fact that a low level supervisor took some
action that was not later reversed by a policymaker.”

. The Board’s following Acevedo’s
recommendation is not enough to prove that Acevedo
was a final policymaker. To maintain her § 1983 claim,
Darchak must demonstrate that the Board either
delegated final policymaking authority to Acevedo or
ratified Acevedo’s action.
  Under the delegation theory, the person or entity with
final policymaking authority must delegate the power to
make policy, not simply the power to make decisions.
“There must be a delegation of authority to set policy
for hiring and firing, not a delegation of only the final
authority to hire and fire.” 

(citations omitted). Darchak presents no evidence that
the Board had entrusted Acevedo with the power to
create employment policy. Again, policymaking is
broader than decisionmaking; the Board’s failure to
review one personnel recommendation does not mean
that the Board systematically allows Acevedo to set
policy on employment decisions or to make final
decisions without Board review. See Rasche v. Vill. of
Beecher, 

, 600 (7th Cir. 2003) (determining
under Illinois law that if a municipal agency re-
tained authority to review officials’ decisions, the
officials did not have final policymaking authority);
No. 08-2732                                                 11

Gernetzke v. Kenosha Unified Sch. Dist. No. 1, 

,
469 (7th Cir. 2001) (“Delegation is not direction; authoriza-
tion is not command; permission does not constitute the
permittee the final policymaking authority.”) (citations
omitted); Beattie v. Madison County Sch. Dist., 

, 602–03 (5th Cir. 2001) (holding that an official is
a “final policymaker” only when her decisions are
“unreviewable by any other body”).
  Nor did the Board’s decision to adopt Acevedo’s recom-
mendation without review constitute a ratification of
Acevedo’s action. “[A] § 1983 claim . . . based on a ‘ratifica-
tion’ theory must allege that a municipal official with
final policymaking authority approved the subordinate’s
decision and the basis for it.” Baskin v. City of Des Plaines,

, 705 (7th Cir. 1998) (emphasis added). The
Board approved Acevedo’s decision not to renew
Darchak’s contract, but no evidence demonstrates that
the Board was aware of any potential retaliatory basis
for the nonrenewal.


                              C
  Finally, Darchak argues that the Board discriminated
against her on the basis of her national origin in viola-
tion of Title VII. Unlike § 1983, Title VII allows plaintiffs
to use the doctrine of respondeat superior to hold a
municipal agency vicariously liable for the actions of its
employees. Mateu-Anderegg v. Sch. Dist. of Whitefish Bay,

, 623–24 (7th Cir. 2002). Darchak claims
that Acevedo’s derogatory remarks about Polish people
demonstrated a discriminatory animus that motivated
12                                              No. 08-2732

her recommendation not to renew Darchak’s employ-
ment contract. The Board admits that it accepted
Acevedo’s recommendation.
  Under Title VII, a plaintiff can prove discrimination
either by presenting evidence of discrimination (the
“direct method” of proof), or by the McDonnell Douglas
burden-shifting approach (the “indirect method”). Winsley
v. Cook County, 

, 604 (7th Cir. 2009); Antonetti
v. Abbott Labs., 

, 591 (7th Cir. 2009). Darchak’s
claim fails under the burden-shifting method, because
she has not shown that the Board’s purported reasons
for letting her go—funding cuts and poor perfor-
mance—were pretextual. Her case under the direct
method of proof, however, is not so easy.
  Under the direct method of proof, a plaintiff’s claim
survives summary judgment if she can demonstrate
“triable issues as to whether discrimination motivated
the adverse employment action.” Nagle v. Vill. of Calumet
Park, 

, 1114 (7th Cir. 2009) (citation omit-
ted). She can establish triable issues using either direct
or circumstantial evidence. Id.; see Atanus v. Perry, 

, 671 (7th Cir. 2008) (“The focus of the direct
method of proof thus is not whether the evidence
offered is ‘direct’ or ‘circumstantial’ but rather whether
the evidence ‘points directly’ to a discriminatory reason
for the employer’s action.”) (citation omitted). Direct
evidence would be an admission by the decisionmaker
that the adverse employment action was motivated by
discriminatory animus. 

. Such
admissions are understandably rare, and lacking here.
No. 08-2732                                            13

Circumstantial evidence of discrimination, however, is
less rare. We typically point to three categories of cir-
cumstantial evidence in employment discrimination cases:
   (1) suspicious timing, ambiguous oral or written
   statements, or behavior toward or comments directed
   at other employees in the protected group; (2) evi-
   dence, whether or not rigorously statistical, that
   similarly situated employees outside the protected
   class received systematically better treatment; and
   (3) evidence that the employee was qualified for the
   job in question but was passed over in favor of a
   person outside the protected class and the em-
   ployer’s reason is a pretext for discrimination.
Sun v. Bd. of Trustees, 

, 812 (7th Cir. 2007)
(citation omitted); Troupe v. May Dep’t Stores, Inc.,

, 736 (7th Cir. 1994).
  Darchak presented evidence that Acevedo made deroga-
tory remarks to her about Polish people in October and
November 2005. Acevedo allegedly said that Hispanic
students are “better than Polish” and “deserve more
than Polish people.” She called Darchak a “stupid Polack,”
and told her, “if you don’t want to do whatever I tell you
to do, you can leave my school.” These remarks were
followed shortly by a cautionary notice from Acevedo
charging Darchak with insubordination and, ultimately,
by the nonrenewal of Darchak’s contract several
months later. This evidence fits the first category of
circumstantial evidence listed above. In fact, the deroga-
tory comments allegedly made by Acevedo are less am-
biguous than those in many discrimination cases. The
14                                                 No. 08-2732

“stupid Polack” remark speaks clearly of discriminatory
animus, and the other remarks are suggestive.
  The district court dismissed this claim for two reasons.
First, the court stated that Darchak “provide[d] no
support for her allegations besides her own self-serving
deposition transcript.” Darchak v. Bd. of Educ., No. 07-C-104,

, at *6 (N.D. Ill. June 25, 2008). It is true
that uncorroborated, self-serving testimony cannot
support a claim if the testimony is based on “speculation,
intuition, or rumor” or is “inherently implausible.” Payne
v. Pauley, 

, 773 (7th Cir. 2003). But testimony
based on first-hand experience is none of those things.
Darchak’s testimony presents specific facts, even if that
testimony may be less plausible than the opposing liti-
gant’s conflicting testimony (a question we need not—nay,
cannot—reach). 

it is also true that
isolated remarks are not enough to meet the plaintiff’s
burden, remarks coupled with an adverse employment
action suffice. See Venters v. City of Delphi, 

, 973
& n.7 (7th Cir. 1997) (citing, inter alia, Shager v. Upjohn Co.,

, 402 (7th Cir. 1990)). A reasonable jury could
find Darchak’s report of Acevedo’s remarks convincing,
and it is undisputed that Darchak’s contract was not
renewed at Acevedo’s recommendation and that
contract nonrenewal is an adverse employment action.
Nothing more is needed to demonstrate that a plaintiff
has established a prima facie case under the direct
method of proof. Sylvester v. SOS Children’s Vills. Ill., Inc.,

, 905 (7th Cir. 2006). There need not be a rich
and varied body of circumstantial evidence (a “mosaic” of
discrimination, 

), as long as what
No. 08-2732                                                15

evidence there is adds up to discriminatory intent. See

–04.
  This brings us to the district court’s second reason for
dismissing Darchak’s discrimination claim: the court
determined that Darchak failed to demonstrate that
“Acevedo’s comments were causally related to her
decision not to renew [Darchak’s contract].” Darchak,

, at *6.3 This appears to be a question of
timing. But the bare fact that Darchak was not fired
immediately after Acevedo allegedly made these
remarks does not destroy the potential causal connection.
The structure of the school year dictated the employment
timetable, and Acevedo may not have been able to recom-
mend nonrenewal of Darchak’s contract any earlier than
she did. In any event, we have previously found that
three to four months between a remark and an employ-
ment action is not so long as to defeat the inference of
a causal nexus, Bellaver v. Quanex Corp., 

, 493
(7th Cir. 2000), and not much more time than that, if
any, elapsed here.
  The connection between Acevedo’s discriminatory
remarks and her ultimate recommendation not to renew



3
  The Board argues that Darchak has waived her challenge to
the dismissal of this claim by failing to address the district
court’s finding on causality. Darchak has fairly presented her
argument regarding the Title VII claim, and the Board has
suffered no prejudice from any deficiency in the particularity
with which she presented it. We therefore conclude that
Darchak has not waived her appeal of this claim.
16                                                      No. 08-2732

Darchak’s contract raises a question of intent. The fact
that Acevedo rehired another Polish teacher is evidence
of a possible answer to that question, but, as a question
of intent, it is properly put to the jury, not to the court on
summary judgment. 

. It is possible
the district court simply did not believe Darchak; indeed,
as we have noted, she presented no evidence of Acevedo’s
comments besides her own testimony, and the only
other person present during these conversations—
Acevedo—denies having made them.4 But we repeat that
it is not the court’s job to assess the persuasiveness of
Darchak’s testimony. Giannopoulos v. Brach & Brock Confec-



4
   Also suggestive is that Darchak failed to complain about
discrimination until she filed this lawsuit. This can defeat a
claim where an employer has in place anti-discrimination
policies and the employee fails to take advantage of them, see
Burlington Indus., Inc. v. Ellerth, 

, 765 (1998); Faragher
v. City of Boca Raton, 

, 806–07 (1998), but the Board
may not maintain a Faragher/Ellerth defense here because in
addition to Acevedo’s discriminatory remarks, Darchak has
also shown that she suffered a tangible employment action.
See Jackson v. County of Racine, 

, 500–01 (7th Cir.
2007) (Ellerth and Faragher established that in situations
where “the supervisor’s harassment resulted in ‘a tangible
employment action, such as discharge, demotion, or undesir-
able reassignment,’ . . . the employer’s vicarious liability is
strict, in the sense that no defense is available once the
other elements of the case have been proven.”) (internal citation
omitted). The district court dismissed a putative hostile
work environment claim on Faragher/Ellerth grounds, but
Darchak has not challenged that ruling.
No. 08-2732                                                17

tions, Inc., 

, 410 (7th Cir. 1997) (warning courts
against “invad[ing] the province of the factfinder by
attempting to resolve swearing contests and the like” and
collecting cases). Employment discrimination cases
often center on parties’ intent and credibility, which
must go to a jury unless “no rational factfinder could
draw the contrary inference,” Veprinsky v. Fluor Daniel,
Inc., 

, 894 (7th Cir. 1996). That is not the case
here.
  Finally, even if the Board is able to prove valid
reasons for not renewing Darchak’s contract—OLCE’s
funding cuts as well as Darchak’s performance issues
suggest the Board is able to provide reasons—such proof
does not by itself extinguish Darchak’s claim. This is
because Darchak presented evidence of discrim-
ination, which a jury could find also played a role in the
employment decision. In mixed-motive cases, the defen-
dant “escapes having to pay damages but, by virtue of the
1991 amendment [to the Civil Rights Act], still has to
pay the plaintiff’s attorney’s fees and is also subject to
declaratory and injunctive relief” if the employment
decision had some discriminatory motivation. Boyd v. Ill.
State Police, 

, 900 (7th Cir. 2004) (Posner, J.,
concurring); see 42 U.S.C. § 2000e-5(g)(2)(B); see also

n.7. Because Darchak’s evidence of
discrimination is sufficient to reach a jury, she does not
bear the burden of proving that the defendant’s reasons
for terminating her were pretextual—such a burden
attaches only under the indirect method of proof, a stan-
dard not applicable here. 

.
18                                          No. 08-2732

                          III
   The dismissal of Darchak’s retaliatory discharge and
first amendment retaliation claims is A FFIRMED. The
dismissal of her national origin discrimination claim is
R EVERSED and R EMANDED for proceedings consistent
with this opinion.




                         9-3-09