MEMORANDUM OPINION AND ORDER
Plaintiff Lu Aku ("Aku") filed this pro se lawsuit against his former employer, the Board of Education of the City of Chicago ("the Board"), D'Andre Weaver ("Weaver"), the principal at the school where Aku taught until 2014, and thirteen other defendants ("Non-Board Defendants"). Aku claims that the Board discriminated against him based on his age, sex, color, race, national origin, and disability in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"),
Factual Background
Aku, an African-American man born in 1967, began teaching science at Gwendolyn Brooks College Preparatory Academy ("Brooks"), a public school in Chicago, on August 27, 2007. Compl., Ex. Illinois Department of Human Rights ("IDHR") and EEOC Charge # 15W0707.03 ("Charge 03") at 1.
Aku experienced a number of challenges during the 2013-14 school year. In August 2013, Weaver, Brooks's Principal, informed Aku that Aku would not teach Physics for 2013-14, as expected, but instead he would teach Biology and Environmental Science. Pl.'s Resp. Opp'n Parkview Mot. Dismiss, Ex. 4, Bullying Grievance ¶¶ 2, 6, 7, 9, ECF No. 96 ("Bullying Grievance"). Weaver then provided Aku with insufficient textbooks for his classes and scheduled Aku to teach during the science department's common planning time.
On April 30, 2014, Aku reported to a Chicago Public Schools Employment Compliance Administrator that the school administration had held a meeting in November 2013 for only African-American teachers, where Weaver had assured the teachers that their jobs were not in danger. Compl. ¶ 16, Charge 07 at 4; Pl.'s Resp. Opp'n Board Mot. Dismiss ¶ 1, ECF No. 136. Aku received a negative teaching evaluation from Assistant Principal Shannae Jackson the following month. Charge 07 at 3. Weaver notified Aku in late June 2014 that he did not have a position at Brooks for the 2014-15 school year, Compl. ¶ 12(a), and that he needed math and science endorsements to teach in Brooks's new Science, Technology, Engineering & Math ("STEM") department. See Bullying Grievance ¶ 41; Pl.'s Resp. Opp'n Board Mot. Dismiss ¶ 5. Aku later learned that a computer endorsement could substitute for a missing math or science endorsement. Bullying Grievance ¶ 41.
While Weaver told Aku about the new department's requirements on the same day that he notified Aku that he did not have a position, Weaver had notified other teachers of the new requirement earlier, allowing them to timely acquire their math endorsements. Bullying Grievance ¶ 41. According to Aku, Weaver had notified non-African-American science and math teachers of the change in their department and job requirements for 2014-15, before notifying the African-American teachers. Pl.'s Resp. Opp'n Board Mot. Dismiss ¶ 9. According to Aku, Weaver then terminated African-American teachers who lacked those endorsements, only to later staff the department with underqualified white teachers. See
Around this time, in June 2014, Aku filed his first claim for workers' compensation, related to an ankle injury incurred at Brooks in October 2013. Compl. ¶ 13; Pl.'s Resp. Opp'n Board Mot. Dismiss ¶ 2; Pl.'s Resp. Opp'n Parkview Mot. Dismiss at 4. The ankle injury caused a medial talar dome lesion, which is in effect "a slow-forming, increasingly painful scar inside his ankle." Pl.'s Resp. Opp'n Parkview Mot. Dismiss at 7.
After he was dismissed from Brooks, Aku also began filing IDHR complaints. He filed his first IDHR complaint on July 7, 2014, claiming that he was terminated from Brooks on June 26, 2014, due to age discrimination. Charge 03 at 1. Two months later, on August 7, 2014, Aku filed a second IDHR complaint, alleging harassment and unequal treatment, based on age and race, from August 2013 to May 2014, Charge 07 at 1-3, and retaliation and discrimination from May 2014 to August 2014, due to race and the filing of an earlier discrimination charge,
On or about August 25, 2014, the Board began rehiring teachers who had been laid off from Brooks's math and science department
On September 10, 2014, Aku filed a third IDHR complaint, claiming that he was not recalled back to Brooks due to his age, race, and national origin. Charge 15 at 1-3. Aku then worked as a substitute teacher in September 2014. Compl. Ex., IDHR and EEOC Charge # 15W1027.16 ("Charge 16") at 2. As of October 29, 2014, he had not received pay for that work.
Aku continued to pursue workers' compensation. The Board has not yet responded to the workers' compensation claim that he filed in June 2014. Compl. ¶ 13. While a later claim for workers' compensation was granted in the summer of 2016, Aku still has not received all of the related benefits.
Aku hired the firms of Martay Law ("Martay") and the Law Offices of Bradley Dworkin, P.C. ("Dworkin") to pursue his workers' compensation claims. Both firms are named as defendants, as is Jack Sanker ("Sanker"), an attorney then working at Dworkin. Compl. ¶ 16(f)(xiii). Aku was displeased with their performance: Martay Law for not taking any action for nineteen days after he retained them, Pl.'s Resp. Opp'n Attorney Review and Disciplinary Committee (ARDC) Mot. Dismiss ¶ 3, ECF No. 93; and Dworkin and Sanker for not fully resolving his workers' compensation and total temporary benefit claims,
Defendant Parkview Orthopaedic Group ("Parkview") treated Aku for his ankle injury. Pl.'s Resp. Opp'n Parkview Mot. Dismiss at 3. Parkview did not determine the root cause of Aku's ankle injury.
Defendant Chicago Teachers Union ("Union") filed grievances on Aku's behalf related to some of these events. See Compl. ¶ 16(f)(ix); Pl.'s Resp. Opp'n Union Mot. Dismiss ¶ 2, ECF No. 114. Defendant Brian Clauss ("Clauss") arbitrated hearings related to those grievances. Compl. ¶¶ 13, 16(f)(xxvi)-(xxviii). Defendant Robin Potter and Associates ("Potter Law") served as the Union's legal representative during this time.
Aku has named the IDHR and the Illinois Human Rights Commission (IHRC) as defendants in this action. During the investigation of the IDHR charge, the IDHR asked Aku to stop submitting evidence and eventually dismissed all four charges due to lack of substantial evidence. Compl. ¶ 13. The IDHR also required Aku
Aku filed a charge with the EEOC on November 9, 2016, broadly claiming differential treatment and termination by the Board on the basis of disability, race, national origin, color, and sex, as well as retaliation for asserting his rights. Compl. Ex., EEOC Charge, at 1. Aku received a right-to-sue letter from the EEOC on December 20, 2016. Compl. ¶ 8. Aku initiated this suit on February 15, 2017.
Legal Standard
A motion to dismiss pursuant to Rule 12(b)(1) tests the jurisdictional sufficiency of the complaint. "When ruling on a motion to dismiss for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1), the district court must accept as true all well-pleaded factual allegations, and draw reasonable inferences in favor of the plaintiff." Ezekiel v. Michel ,
To survive a motion to dismiss under Rule 12(b)(6), a complaint must "state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly ,
The Court is mindful that "a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers." Erickson v. Pardus ,
Analysis
Aku claims that the Board discriminated against him on the basis of color, national origin, race, and sex, under Title VII; on the basis of color, national origin, and race under
The Board moves to dismiss all ADEA, ADA, Title VII, and § 1981 claims against Weaver, as well as all official-capacity claims against him; in other words, it seeks to dismiss all claims against Weaver other than individual-capacity claims brought under §§ 1981 and 1983. Board Mot. Dismiss at 2, ECF No. 76. The Board also moves to dismiss all §§ 1981 and 1983 claims against the Board, and all ADEA, ADA and Title VII claims against it except for those "based on an alleged March 15, 2016 termination."
I. Claims Against Weaver
Aku does not indicate whether he intended to sue Weaver in his personal or official capacity. In accordance with the leniency afforded to pro se litigants, see Talley v. Lane ,
The Board moves to dismiss all claims against Weaver in his official capacity, arguing that official-capacity claims against him are duplicative of claims against the Board. Board Mot. Dismiss at 4. To the extent that Aku does assert official-capacity claims against Weaver, the Court grants the Board's motion to dismiss those claims as redundant of Aku's claims against the Board. See Sow v. Fortville Police Dep't ,
To the extent that Aku brings ADEA, ADA, and Title VII claims against Weaver himself, the Board moves to dismiss those claims, contending that the statutes do not provide for individual liability. Board Mot. Dismiss at 4.
Seventh Circuit law is clear that the ADA and Title VII do not provide for individual liability. See Silk v. City of Chi. ,
Aku does not respond to the Board's arguments, other than to note that Weaver "was an integral part of the scheme to displace Plaintiff; and without Weaver['s] harmful actions there would have been no employment severance whatsoever." Pl.'s Resp. Opp'n Board Mot. Dismiss at 1. The Court thus grants the Board's motion to dismiss all ADEA, ADA, and Title VII claims against Weaver in his personal capacity.
II. Claims Against the Board
A. ADEA, ADA, and Title VII Claims
The Board construes Aku's ADEA, ADA, and Title VII claims as exclusively premised on four alleged terminations of employment: "(1) from [Brooks] on June 30, 2014 or August 24, 2014; (2) from a two-day teaching assignment on September 22, 2014; (3) at a September 3, 2015 "job orientation session for reassigned teachers"; and (4) "from Substitute Services" on March 15, 2016." Board Mot. Dismiss at 5 (citing Compl. at 3-4 (¶ 12(a))). It then asserts that claims for terminations (1)-(3) should be dismissed because Aku "fail[s] to comply with administrative prerequisites," id. at 5; that is, Aku fails to attach an EEOC right-to-sue notice for a charge encompassing terminations (1)-(3).
Aku attaches one right-to-sue notice, for EEOC charge 440-2017-00645, filed November 9, 2016, which broadly describes discrimination due to race, national origin, color, sex, and disability, as well as discrimination in retaliation for engaging in protective activity. Compl. Ex., EEOC Charge. The Board argues that, because a charge of employment discrimination must be filed with the EEOC or relevant state agency within 300 days of the alleged unlawful employment practice to be timely, Bass v. Joliet Pub. Sch. Dist. No. 86 ,
However, "[a] plaintiff's failure to exhaust administrative remedies"-which includes the failure to timely file an administrative charge-"is an affirmative defense." Salas v. Wisc. Dep't of Corr. ,
In its motion, the Board narrowly construed Aku's ADEA, ADA, and Title VII claims as to relate only to terminations. See Board Mot. Dismiss at 5. The Court notes, however, that Aku's claims under those statutes also encompass claims of discriminatory treatment while he was employed, starting in August 2013, as well as retaliation in the processing of his claims for workers' compensation and other benefits. See, e.g., Compl. ¶¶ 12(b), (e), (g), (i), (j), (w). The Board makes no arguments to dismiss those claims under the ADEA, ADA and Title VII, and they too will proceed.
B. Section 1983 Claims
The Board first argues that Aku cannot assert
The Board next argues that Aku fails to state a Monell claim against the Board, dooming his § 1983 claims. See Monell v. City of New York Dep't of Social Servs. ,
The Board contends that Aku has pleaded no factual allegations of a discriminatory Board policy or practice, and furthermore, that Weaver, as a principal, does not qualify as a "final policymaker" for whom the Board bears responsibility under Monell . Board Mot. Dismiss at 8.
The Court agrees. Aku pleads facts that might, at best, plausibly support a claim of a policy of terminating African-American teachers at Brooks. For example, he alleges that Brooks held an all-African-American teachers meeting to dispel concerns that it would dismiss African-American teachers, then dismissed all African-American science and math teachers. See Compl. ¶¶ 13, 16(f)(xxv); Charge 07 at 3, 4, Pl.'s Resp. Opp'n Board Mot. Dismiss at 1. Aku does not plead any facts, however, that indicate a Board-wide policy or practice of discriminating against teachers on the basis of color, national origin, or race.
Because Aku did not plead any facts indicating that there was a discriminatory Board policy or custom, or that Weaver qualified as a "final policymaker" under Monell , the Court grants the Board's motion to dismiss any § 1983 claims against the Board.
III. Claims Against the Non-Board Defendants
Aku alleges that the Non-Board Defendants
A. Subject Matter Jurisdiction as to Claims Against the ARDC
The ARDC seeks to dismiss the complaint under Rule 12(b)(1), asserting that the Court does not have subject matter jurisdiction because Aku lacks standing, ARDC Mem. Supp. Mot. Dismiss ¶ 7, ECF No. 47, and that the claims against it are barred by the Eleventh Amendment. Id. ¶¶ 13-17.
Standing requires that "the party invoking federal jurisdiction [ ] demonstrate 'a personal injury fairly traceable to the defendant's allegedly unlawful conduct and likely to be redressed by the requested relief.' " G& S Holdings LLC v. Cont'l Cas. Co.,
Indeed, Aku's only direct reference in his complaint to the ARDC is a request that the agency "reopen investigations of David Martay and Jack Sanker." Compl. ¶ 16(f)(xi). But "a citizen lacks standing to contest the policies of the prosecuting authority when he himself is neither prosecuted nor threatened with prosecution." Wikberg v. Reich ,
Aku's only response to this argument is to provide a description of the ways Martay and Sanker have wronged him, Pl.'s Resp. Opp'n ARDC Mot. Dismiss at 2, and to assert that the agency's "oversight" with respect to Aku's requests for investigation of the two attorneys "deserves federal attention," id. at 1-2. Because these arguments do not establish personal injury fairly traceable to the ARDC, the Court concludes that Aku is unable to demonstrate standing regarding his claim against the ARDC.
The ARDC also contends that, as the "the investigative and prosecutorial arm of the Illinois Supreme Court," Aku's claims against it are barred by sovereign immunity. ARDC Mem. Supp. Mot. Dismiss ¶ 15; see also Ill. S. Ct. Rules 751, 752(a). The Eleventh Amendment bars suits against states in federal court, unless Congress has overridden the state's immunity or the state has waived it. Ryan v. Ill. Dep't of Children & Family Servs. ,
Because Aku cannot demonstrate an injury traceable to the ARDC for any of his claims, and because his claims are further barred by sovereign immunity, the Court grants the ARDC's motion to dismiss Aku's claims against it for lack of subject matter jurisdiction under 12(b)(1).
B. Arbitral Immunity
Clauss served as an arbitrator for grievances filed by the Union on behalf of Aku. See Compl. ¶¶ 13, 16(xxvi)-(xxix). All of Aku's allegations regarding Clauss concern Clauss's actions while serving as arbitrator on October 13, 2016, and January 31, 2017.
Arbitrators are shielded from liability by absolute immunity. See Coleman v. Dunlap ,
C. Conspiracy/Aiding and Abetting Under the ADA and Title VII
The Non-Board Defendants contend that Aku's claims that they conspired with, and aided and abetted, the Board in discriminating against him, in violation of Title VII, and retaliating against him, in violation of the ADA, cannot be maintained because the relevant statutes provide no relief against non-employers. See, e.g., Parkview Reply Br. at 8, ECF No. 118; Cannon Cochran, Mem. Supp. Mot. Dismiss at 3-4. They therefore seek to dismiss those claims under Rule 12(b)(6) for failure to state a claim upon which relief can be granted.
A plaintiff "must prove the existence of an employment relationship in order to maintain a Title VII action" against a defendant. Knight ,
Aku neither alleges nor pleads any facts indicating that he had an actual or de facto employee-employer relationship with any of the Non-Board Defendants. See Love,
Therefore, to the extent that Aku asserts a claim that the Non-Board Defendants conspired with or aided and abetted the Board in discriminating and retaliating against him in violation of Title VII and the ADA, he fails to state a claim to relief against the Non-Board Defendants, and the claims are dismissed with prejudice.
D. Independent Claims Against Non-Board Defendants
Aku provides a list of actions committed by "defendant(s)," Compl. ¶ 12, most of which appear to describe ways in which the Board, acting independently, violated the ADA, ADEA, Title VII, § 1981, and § 1983. See, e.g., id. ¶ 12(a)-(h), (k)-(m). The impression that these items refer solely to the Board is reinforced by Aku's listing of eleven of the Non-Board Defendants as "aiding and abetting" the "defendant(s)" in retaliation against Aku. Id. ¶ 12(j). However, some of the later items on the list could be interpreted as applying solely to Non-Board Defendants. See id. ¶¶ 12(o), (p), (q), (t), (u), (w), (x), and (y). For example, the clause, "failed to address attorney misconduct," might only be leveled at the ARDC, see id. ¶ 12(o); the clause, "participated in medical malpractice and/or insurance fraud schemes" might only relate to Parkview, see id. ¶ 12(q); and the clause "refused to investigate complaints of aiding & abetting," might only be directed toward the IDHR and IHRC, see id. ¶ 12(u).
If, indeed, some of the items on the list were intended to be independent claims against unnamed individual Non-Board Defendants, Aku would have needed to connect the claims with individual Defendants in order for the parties to be on notice and for the Court to evaluate the legal sufficiency of the claims. See Agnew v. Nat'l Collegiate Athletic Ass'n ,
Conclusion
For the reasons stated herein, the Board's partial motion to dismiss [76] is granted in part and denied in part. The Court grants the Board's motion to dismiss all claims against Weaver (other than personal-capacity claims brought under §§ 1981 and 1983 for discrimination on the basis of color, national origin, and race) and all § 1983 claims against the Board; in all other respects, the Board's motion to dismiss is denied. The following causes of action against the Board remain: Title VII color, national origin, race, and sex discrimination claims; ADEA age discrimination claims; ADA disability discrimination claims; and Title VII, ADEA, and ADA retaliation claims.
The Non-Board Defendants' motions to dismiss, [10], [12], [22], [38], [46], [52], [64], [89], [127], are granted in full, and Aku's claims that the Non-Board Defendants aided, abetted, and conspired with the Board to discriminate and retaliate against him, in violation of Title VII and the ADA, are dismissed with prejudice. Claims against Clauss and the ARDC are dismissed, respectively, by arbitral immunity and lack of subject matter jurisdiction. There are no remaining claims asserted against the Non-Board Defendants. Accordingly, the following Non-Board Defendants are terminated: the Attorney Registration & Disciplinary Commission, Brian E. Clauss, Cannon Cochran Management Services, Chicago Teachers Union, Law Offices of Bradley Dworkin, P.C., Illinois Human Rights Commission, Jack Sanker, Martay Law Office, Parkview Orthopaedic Group, Robin Potter, Robin Potter & Associates, P.C., and Sedgwick Claims Management Services. To date, Non-Board Defendant Illinois Department of Human Rights (IDHR) has not answered or filed an appearance, although Aku filed an affidavit of service on the IDHR, dated May 25, 2017. Pl.'s Ex., Aff. Service IDHR, ECF No. 151. As a result, three Defendants remain: Weaver, the Board, and the IDHR.
If Aku wishes to file an amended complaint consistent with this order, he must do so by 12/5/17. The parties are encouraged to prepare to discuss discovery at the status hearing previously set for November 16, 2017.
IT IS SO ORDERED .
Notes
The Board's motion was filed on behalf of the Board and Weaver. Board Mot. Dismiss at 1.
The Court construes the answer filed by Defendant Martay Law ("Martay"), requesting a dismissal with prejudice, as a motion to dismiss. Martay Answer at 1, ECF No. 10. To date, Defendant Illinois Department of Human Rights (IDHR) has not answered or filed an appearance. The initial status report filed on 8/17/17 stated that IDHR had not yet been served. Initial Status Report at 4, ECF No. 150. Aku then filed an affidavit of service on the IDHR, dated May 25, 2017. Pl.'s Ex., Aff. Service IDHR, ECF No. 151.
The following facts are taken from Aku's complaint and his briefs in opposition to the motions to dismiss, and are accepted as true on review of the motions to dismiss. See Tamayo v. Blagojevich ,
The Court does not, however, consider most of the extensive exhibits attached to Aku's briefs in opposition to the motions to dismiss. See, e.g., Pl.'s Resp. Opp'n ARDC Mot. Dismiss, ECF No. 93 (attaching twenty-four separate exhibits, most of which are copies of email correspondence and print-outs of websites). Rule 12(d) requires the Court to either strike the exhibits or convert the motion to a summary judgment motion. Fed. R. Civ. P. 12(d). The exhibits are stricken accordingly, with one exception: the Court does consider Aku's Bullying Grievance, Pl.'s Resp. Opp'n Parkview Mot. Dismiss, Ex. 4, as an affidavit-like exhibit alleging facts that are "consistent of the allegations in the complaint,"Smith ,
Because they are not the subject of the Board's motion to dismiss, Aku's §§ 1981 and 1983 claims against Weaver in an individual capacity remain.
Aku's § 1981 claims, and hence his § 1983 claims, exclusively refer to color, national origin, and race discrimination. See Compl. ¶ 9. He did not plead § 1983 claims based on age and disability discrimination.
The Non-Board Defendants are: the ARDC, Brian E. Clauss, Cannon Cochran Management Services, Chicago Teachers Union, Law Offices of Bradley Dworkin, P.C., Illinois Department of Human Rights, Illinois Human Rights Commission, Jack Sanker, Martay Law Office, Parkview Orthopaedic Group, Robin Potter, Robin Potter & Associates, P.C., and Sedgwick Claims Management Services.
To the extent that Aku was attempting to plead common-law aiding and abetting and conspiracy claims, as two of the Non-Board Defendants posited, see, e.g., Parkview Mem. Supp. Mot. Dismiss at 12-14; ARDC Mem. Supp. Mot. Dismiss ¶¶ 23, 24, such claims would fail for the same reasons. Beyond the fact that Aku failed to plead the elements of Illinois conspiracy and aiding and abetting, such claims are not permitted under Title VII and the ADA because so permitting would expand the scope of liability beyond a plaintiff's employer. See Love,
See note 7, supra (listing Non-Board Defendants).