Case Information
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION
EDGAR RIVERA,
Plaintiff
No. 23 CV 14977 v.
Judge Jeremy C. Daniel BOARD OF EDUCATION FOR
TOWNSHIP HIGH SCHOOL
DISTRICT #214,
Defendant AMENDED MEMORANDUM OPINION AND ORDER
Plaintiff Edgar Rivera brings this lawsuit against the defendant, the Board of Education for Township High School District #214, alleging race and national origin discrimination under Title VII, 42 U.S.C. § 2000e et seq . (“Title VII”) (Counts I and II), disability discrimination under the Americans with Disabilities Act, 42 U.S.C. § 12112 (“ADA”) (Count IV), retaliation for reporting a disability under the ADA and retaliation for reporting harassment related to racial or national origin discrimination under Title VII (Count V), and discrimination by a state actor under color of law under 42 U.S.C. § 1983 (Count III). (R. 19 (“Second Amended Complaint or “SAC”).) [1] The defendant moves to dismiss all counts, and to strike Rivera’s request for punitive damages. (R. 21.) For the reasons that follow, the defendant’s motion to dismiss is granted in part and denied in part.
BACKGROUND
From July 2017 through June 30, 2022, Rivera was employed as a Division Head of Student Success, Safety, and Wellness at Elk Grove High School (“Elk Grove”). (SAC ¶ 10.) According to Rivera, throughout the entirety of his employment at Elk Grove, he received no complaints regarding his job performance. ( Id. ¶ 17.) Rivera alleges a coworker, Justin Penio, made discriminatory remarks to Rivera based on Rivera’s race and national origin. ( Id. ¶ 20A.) According to the Second Amended Complaint, over the course of his time at Elk Grove, Rivera made his superiors aware, via a handful of in-person conversations, of Penio’s conduct. ( See, e.g. , id. ¶¶ 26, 32, 33–35, 38.) Also, during this time, Rivera began to suffer from anxiety and depression, which he alleges was linked to his work environment. ( Id. ¶¶ 27–29.) Rivera alerted his supervisors to his mental health challenges; this was acknowledged via text message by the principal of Elk Grove, Paul Kelly. ( Id. ¶¶ 29– 31, 37–40.) Rivera contends his claims of harassment by Penio were never investigated and he received no assistance with his disability. ( Id. ¶¶ 31, 35, 40.)
In October 2021, Penio left Elk Grove for a position at Buffalo Grove High School, a position Rivera regards as an unlisted promotion. ( Id. ¶¶ 47–48.) On December 17, 2021, Rivera was told by Kelly and Interim Assistant Principal Steven Kolodziej that he “would not be back at Elk Grove the following year.” ( Id. ¶ 50.) No reasons for this decision were given. ( ¶ 51.) In the months leading up to his last day, June 30, 2022, Rivera attempted to secure other education related employment; according to the Second Amended Complaint, he applied for positions in school administration and teaching, both in and out of District 214. ( See generally, id. , ¶¶ 73A–H.) In some instances, Rivera was informed that Kelly had given the potential new employers negative reviews about Rivera’s work. ( Id. ¶¶ 73C, F.) Despite his efforts, Rivera was unable to secure education related employment. ( Id. ¶ 75.)
On May 13, 2022, Rivera filed a charge with the Equal Employment Opportunity Commission (“EEOC”) claiming race, national origin, and disability discrimination. ( ¶ 6; see also R. 19-1.) The defendant filed a written response to the charge in May 2023, (SAC ¶ 6; see also R. 19-8), to which Rivera replied on June 6, 2023 (SAC ¶ 7; see also R. 19-9.) The EEOC issued a Right to Sue notice on July 18, 2023. (SAC ¶ 7; see also R. 19-2.) Rivera’s Second Amended Complaint was filed on June 28, 2024. (SAC.) The defendant now moves to dismiss under Federal Rule of Civil Procedure 12(b)(6). (R. 21.)
LEGAL STANDARD
“To survive a motion to dismiss, a complaint must contain sufficient factual
matter, accepted as true, to state a claim to relief that is plausible on its face.”
Calderon-Ramirez v. McCarment
,
ANALYSIS
I. F AILURE TO E XHAUST – C OUNTS I, II, IV AND V
First, the defendant moves to dismiss Counts I, II, IV and V for failure to
exhaust administrative remedies. (R. 21 at 3.) “As a general rule, a Title VII plaintiff
cannot bring claims in a lawsuit that were not included in h[is] EEOC charge.”
Cheek
v. W. and S. Life Ins. Co.
, 31 F.3d 497, 500 (7th Cir. 1994) (citing
Alexander v.
Gardner-Denver Co.
, 415 U.S. 36, 47 (1974)). This rule serves two purposes: “[i]t
affords the employer some notice of the conduct underlying the employee’s
allegation,”
Cervantes v. Ardagh Grp.
,
The Court considers Count I, II, IV, and V in turn.
A. Count I
As to Count I, the defendant argues that it should be dismissed because
Rivera’s EEOC charge is void of details describing how he was “subjected to racial
harassment or discrimination.” (R. 21 at 4.) Though Rivera did not “check the box”
for racial discrimination, he wrote that he believed he was being discriminated
against because of his “national origin, Hispanic[.]” (R. 19-1.) There is “uncertainty
about what constitutes race versus national origin discrimination under Title VII.”
Salas v. Wis. Dept. of Corrs.
,
In
Torres
, the plaintiff did not “check the race discrimination box on [his]
EEOC charges” when alleging he was discriminated because of his “national origin,
Hispanic,” but brought discrimination claims based on both national origin and race.
Torres
, 2000 WL 549588, at *1–2. The court explained that “the term ‘Hispanic’ is
unique, encompassing the concepts of race and national origin[.]”
Id.
at *2. As a
result, the “dual understanding of the term Hispanic would reasonably cause the
EEOC to investigate discrimination based both on national origin and race[.]” (internal citations omitted). Similarly, in
Gaytan
, the district court determined that
the plaintiff’s use of the term “Hispanic,” when not connected to a specific country of
origin, “would reasonably have alerted the EEOC to his race discrimination claim.”
2012 WL 2597932, at *6. In addition, several courts in this district have cited to
Torres’s
reasoning to highlight the uniqueness of the term “Hispanic” in this context.
See, e.g., Goodlet v. City of Chi.
, No. 22 C 570,
Here, the Court is persuaded by the reasoning in
Torres
. And because “charges
are to be construed with the ‘utmost liberality,’”
Babrocky v. Jewel Food Co.
, 773 F.2d
857, 866 (7th Cir. 1985) (quoting
Eggleston v. Chi. Journeymen Plumbers’ Local
Union No. 130
,
B. Count II
Administrative exhaustion was similarly met for Count II. The defendant
focuses on the four corners of the charge to argue that “[n]othing in [Rivera’s]
charging document refers to any specific conduct that could reasonably be related to
a hostile work environment claim.” (R. 21 at 6.) But that ignores both the defendant’s
and Rivera’s “position papers.” (R. 19-8, 19-9);
see Williamson v. Curran
, 714 F.3d
432, 436 (7th Cir. 2013) (“When ruling on a motion to dismiss, the court may consider
documents . . . attached to the complaint . . .”). According to Rivera, the defendant
filed a written response to the EEOC charge in May 2023, to which Rivera responded
on June 6, 2023. (
See
SAC ¶¶ 6–7;
see generally
, R. 19-8, 19-9.) Both documents were
submitted prior to the EEOC issuing Rivera’s Notice of a Right to Sue. (
See
SAC ¶ 7;
R. 19-2.) The defendant’s position paper describes in significant detail its view of the
alleged harassment Rivera suffered. (
See
R. 19-8 at 8–10.) Rivera’s response goes into
greater detail about the alleged harassment and how it contributed to a hostile work
environment. (
See, e.g.
, R. 19-9 at 7, 14–16.) “[I]ssues implied by a charge and
communicated to the employer in the course of investigation can enlarge the set of
claims open to the investigation[.]”
O’Rourke v. Continental Cas. Co.
,
C. Count IV
Count IV alleges disability discrimination under the ADA. (SAC ¶¶ 97–106.)
As with Title VII, a plaintiff bringing a claim under the ADA must first file a charge
with the EEOC before filing a lawsuit against an employer.
Whitaker v. Milwaukee
Cnty, Wis.
,
1. Disparate Treatment With respect to disparate treatment, the ADA forbids discrimination based on disability “in regard to . . . discharge of employees . . .” Scheidler v. Indiana , 914 F.3d 535, 541 (7th Cir. 2019) (quoting 42 U.S.C. § 12112 (a)). Rivera’s EEOC charge reads that “[a]fter informing [the defendant] of [his] disability, on or about December 17, 2021, [he] was notified [he] will be discharged on June 30, 2022 . . . [He] also believe[s] that [he] ha[s] been discriminated against because of [his] disability . . .” (R. 19-1.) The charge names Township High School District 214 as the participants in the alleged discrimination. ( ) In its position paper, the defendant states that there is no “evidence that the District’s decision not to offer [Rivera] a new contract at the end of his employment contract was based on his alleged disability.” (R. 19-8 at 7.) This supports an inference that the defendant was on notice that Rivera believed he was fired from his job because of his disability. Therefore, to the extent Count IV alleges disparate treatment based on disability, it has been administratively exhausted.
2. Failure to Accommodate
As for the failure to accommodate theory, under the ADA, it is unlawful to “fail
to make reasonable accommodations to the known physical or mental disabilities of
an otherwise qualified individual with a disability.”
Green
,
However, courts in this district do not necessarily read
Green
to mean that a
“discrimination claim is
per se
incapable of supporting an accommodation claim—no
matter the facts.”
See e.g., Morales v. Goodwill Indus. Of Se. Wis., Inc.
, 14 C 2370,
Rivera acknowledges he did not specifically refer to the defendant’s alleged
failure to accommodate in his EEOC charge. (R. 24 at 9.) So, as it did with Count II,
the Court considers the parties’ position papers. (R. 19-8, 19-9.) The defendant’s
position paper states that Rivera did not “make any comment which suggested he
needed any accommodations to assist him in performing his job,” nor specifically
“request any accommodation.” (R. 19-8 at 7–8.) Rivera’s only specific reference to an
accommodation is that from the point he alleges he notified his superiors of his
disability, “no accommodation or support [was] put in place to help [him].” (R. 19-9 at
19–20.) These statements do not suggest that the “circumstances involving the
employer’s failure to accommodate intertwined with the circumstances involving the
claimed discriminatory termination.”
King
,
D. Count V Count V alleges retaliation for reporting a disability and for reporting harassment related to racial or national origin discrimination. (SAC ¶¶ 108–09.) The defendant raises no arguments regarding retaliation based on disability discrimination. ( See R. 21 at 7–8 (arguing that the plaintiff did not identify protected activity engaged in related to race or national origin); R. 25 at 5–6 (“Plaintiff’s EEOC Charge failed to give notice of a possible claim for retaliation for national origin or race discrimination . . . nowhere does it indicate any adverse action or protected activity connected with Plaintiff’s claim of national origin (or lack of claim for race discrimination).”).) The Court interprets this to mean that the parties do not dispute that retaliation as to Rivera’s disability was exhausted. See Stransky v. Cummins Engine Co. , Inc., 51 F.3d 1329, 1335 (7th Cir. 1995) (“The federal courts will not invent legal arguments for litigants.”).
As to Rivera’s claim for retaliation based on race and national origin, typically
“discrimination and retaliation claims are not considered to be ‘like or reasonably
related to one another.’”
Swearnigen-El v. Cook Cnty. Sheriff’s Dept.
,
Looking at the EEOC charge, Rivera did not “check the box” for retaliation (R.
19-1);
see also Swearnigen-El
,
In sum, the Court finds that Counts I and II have been administratively exhausted, as well as Count IV to the extent it alleges discrimination based on disparate treatment and Count V to the extent it alleges retaliation based on disability. The claim of failure to accommodate in Count IV has not been administratively exhausted, nor has the claim of retaliation based on race and national origin in Count V.
II. F AILURE TO S TATE A C LAIM – A LL C OUNTS
The defendant also argues that all five counts in Rivera’s Second Amended Complaint fail to state a claim. The Court considers each count in turn. [3] A. Counts I and II
As to Counts I and II, the defendant argues that Rivera failed to state a claim
under Title VII for race or national origin discrimination. (R. 21 at 9–11.) To state
such a claim, Rivera must allege that he is a member of a protected class, that he was
meeting his employer’s expectations, that he suffered an adverse employment action,
and that similarly situated employees outside of his protected class were treated more
favorably.
Lauderale v. Ill. Dept. of Human Servs.
,
citations omitted) (cleaned up). Rivera has done that here. ( See, e.g. , SAC ¶¶ 81, 89 (identifying the type of discrimination, when it occurred, and by whom).) The defendant’s motion as to Counts I and II is denied.
B. Count III
The defendant moves to dismiss Count III, arguing that Rivera failed to allege
a viable theory under
Monell v. New York City Dept. of Soc. Servs.
, 436 U.S. 658
(1978).
Monell
applies here because the school board is a municipal defendant.
However, “there can be no
Monell
liability where there is no underlying constitutional
violation.”
LaChance v. Cmty. Consolidated School Dist. 93
, No. 22 C 01266, 2024 WL
1254182, at *6 (N.D. Ill. Mar. 25, 2024) (citing
Sallenger v. City of Springfield, Ill.
,
Here, Rivera alleges that he had a “liberty interest in continuing his
employment with the Board.” (SAC ¶ 96;
see also
R. 24 at 10.) But only “the
individual’s liberty to pursue a particular occupation . . . not the individual’s right to
any one job,” is protected.
Bryant v. Gardner
,
The Second Amended Complaint includes an allegation that the defendant’s
“intentional and malicious conduct in defaming [ ] Rivera’s reputation . . . made it
virtually impossible for Rivera to find new employment in his chosen field.” (SAC ¶
98.) Because the Court must construe all ambiguities in the plaintiff’s favor, the Court
reads this as an allegation that the defendant prevented Rivera from pursuing his
chosen occupation. “The government violates an employee’s occupational liberty
interest when, in the course of a discharge, failure to rehire, or other adverse
employment action, the employer stigmatizes the employee by making public
comments that impugn ‘the individual’s good name, reputation, honor, or integrity’
or impose a ‘stigma or other disability on the individual which forecloses other
opportunities.’”
Bryant
,
Rivera alleges that the defendant “discriminated against Rivera when it made
defamatory, pejorative, and stigmatizing comments to various third parties about [ ]
Rivera during and after they terminated his employment.” (SAC ¶ 97.) According to
Rivera, the comments were made to “administrators and other decision-makers” who
reached out to Board employees for information about Rivera. (
Id.
) Specifically,
Rivera alleges that he learned from one interviewer that Kelly gave Rivera a negative
reference: that “Rivera had difficulty dealing with peer colleague conflict[.]” (
Id.
¶
73C.) In another instance, Rivera was told by District 214 human resources that his
“narrative” email bothered some of the district’s principals. (
Id.
¶ 74D.) Rivera was
also told that he was “being ‘sandbagged’ by District 214 and the Board.” ( ¶ 74F.)
These comments that Rivera identifies in his Second Amended Complaint are the
type of statements one might make when asked for an employee recommendation.
“[S]imply labeling an employee as being incompetent or otherwise unable to meet an
employer’s expectations does not infringe the employee’s liberty.”
Head v. Chi. School
Reform Bd. of Trustees
,
III. P UNITIVE D AMAGES
Finally, the defendant moves to dismiss Rivera’s request for punitive damages.
(R. 21 at 12–13.) Municipalities are immune from punitive damages.
First Midwest
Bank Guardian of Estate of LaPorta v. City of Chi.
,
CONCLUSION
The defendant’s motion to dismiss (R. 20) is granted as to Count III, IV based on failure to accommodate, and V related to race-based retaliation. The plaintiff’s request for punitive damages is stricken. The motion is denied in all other respects. The defendant shall respond to the plaintiff’s remaining claims (Counts I, II, IV— disparate impact, and V—disability related retaliation) on or before November 11, 2024. The October 22, 2024, status hearing is stricken.
Date: October 21, 2024 JEREMY C. DANIEL
United States District Judge
Notes
[1] For ECF filings, the Court cites to the page number(s) set forth in the document’s ECF header unless citing to a particular paragraph or other page designation is more appropriate.
[2] The parties’ briefing with respect to Count IV does not address the allegation that Rivera was subjected to disparate treatment because of his disability; instead, it focuses solely on the allegation that Rivera’s disability was not accommodated. However, because the EEOC charge alleges discrimination based on disability ( see R. 19-1), the Second Amended Complaint also includes that allegation ( see SAC ¶ 102), and Rivera is the nonmovant, the Court considers the allegation of disparate treatment.
[3] Because the Court has already determined that Count IV, to the extent it alleges disability discrimination based on failure to accommodate, and Count V, to the extent it alleges retaliation on the basis of race and national origin, were not administratively exhausted, the Court will not consider the defendant’s arguments as to whether a claim was stated for these counts. ( See R. 21 at 11–12 (arguing claims not stated for failure to accommodate and retaliation based on race and national origin).) For the reasons already