## Facts

- Marcella Ann Cromley was a reading instructor employed by a public high school district and previously served as Reading Department Chair and Chapter I Coordinator.
- Two female students reported to Cromley that teacher Donald Meints had engaged in sexual misconduct; Cromley reported the allegations to the principal, who investigated and found them “basically true.”
- The administration reprimanded Meints but did not report the matter to the state child-protection agency and did not place documentation in Meints’s personnel file.
- Cromley independently reported the misconduct to the state agency and later gave Meints a strongly negative evaluation referencing the allegations; Meints responded with a rebuttal.
- Shortly thereafter, the district merged the Reading Department into the English Department and removed Cromley from the chair position.
- Over subsequent years Cromley applied for multiple administrative positions, including Chapter I Coordinator, Associate English Department Chair, and English Department Chair; the district selected other candidates.
- Cromley sued under 42 U.S.C. § 1983, alleging retaliation for protected speech (reporting sexual misconduct and criticizing the administration’s response), in violation of the First and Fourteenth Amendments.
- During litigation, Cromley’s attorney left her representation and joined the law firm representing the Board; the new firm implemented screening measures to isolate the attorney from the case.
- The district court denied Cromley’s motion to disqualify the defense firm and granted summary judgment to defendants on the First Amendment retaliation claim.

## Issues

1. Whether the evidence permitted a reasonable jury to find that Cromley’s protected speech was a substantial or motivating factor in the district’s decisions not to appoint her to administrative positions, making summary judgment improper.
2. Whether a defense firm must be disqualified when a single attorney who formerly represented the plaintiff joins the firm during the same litigation, or whether effective screening can rebut any presumption that client confidences were shared.

## Decision

- The Seventh Circuit affirmed summary judgment for defendants on the First Amendment retaliation claim.
- The court held Cromley failed to produce evidence from which a reasonable jury could find that protected speech substantially motivated the adverse employment decisions.
- The Seventh Circuit affirmed the denial of the motion to disqualify the defense firm.
- The court held that, when only a single lawyer changes firms, the presumption of shared confidences is rebuttable and was rebutted by timely, effective screening and lack of evidence of disclosure or participation.

## Legal Principles

- In a public-employee First Amendment retaliation claim, the plaintiff must present evidence that protected speech was a substantial or motivating factor in the challenged employment action; speculation is insufficient to defeat summary judgment.
- An employer may prevail at summary judgment when the record supports a non-retaliatory explanation and the plaintiff lacks evidence from which a jury could reasonably find pretext.
- When an individual lawyer laterals to an opposing firm in the same or substantially related matter, a presumption arises that confidences may be shared, but the presumption can be rebutted by proof of effective screening and absence of taint.
- Disqualification is discretionary and is not imposed solely on an “appearance” theory absent a concrete risk to confidential information or fairness of the proceeding.

## Conclusion

The Seventh Circuit held that Cromley did not raise a triable causation issue linking her protected reporting and criticism to the school district’s hiring decisions, and it allowed the defense firm to continue representation because a timely ethical screen and the absence of evidence of disclosure rebutted the shared-confidences concern arising from her former attorney’s move.


Cromley v. Board of Educ. of Lockport Twp. High Sch. Dist. 205, 17 F.3d 1059 (7th Cir. 1994)