established case law. Plaintiff further responds that her EEOC charge was properly signed under oath or by affirmation. Next, plaintiff posits her charge was in fact filed with the IDHR and was also timely as it was filed within 300 days from the complained-of-conduct. Plaintiff contends that Counts I, II and III set forth sufficient facts to state sex discrimination, sex harassment claims and retaliation, respectively. Further, plaintiff contends that Welcker can be held individually liable under Title VII.
As to the Title IX counts, plaintiff contends that because she has adequately alleged her Title VII claims she has also properly set forth her Title IX claims as the standards under both are the same.
Regarding Count VII, plaintiff concedes that Welcker may be dismissed in his official capacity. However, plaintiff contends she has alleged a claim against Welcker individually based on his being a state actor. Plaintiff reiterates her arguments as to the substantive claims under Count VII that she previously asserted in response to McCormick's motion. She further contends that Welcker may be held liable as a supervisor under section 1983 because his alleged inaction constitutes acquiescence in, or encouragement of, unconstitutional behavior. Plaintiff also posits that the issue of qualified immunity is premature as it depends on facts outside the complaint and that the law regarding Welcker's responsibilities was clearly established at the time of his alleged inaction. Lastly, plaintiff essentially concedes that punitive damages are unavailable from the Board, McCormick and Welcker in their official capacities.
In evaluating a motion to dismiss, the court must accept as true all well-pled factual allegations and draw all reasonable inferences in favor of the plaintiff. Hishon v. King & Spalding, 467 U.S. 69, 73, 81 L. Ed. 2d 59, 104 S. Ct. 2229 (1984); Mid Am. Title Co. v. Kirk, 991 F.2d 417, 419 (7th Cir.), cert. denied, 126 L. Ed. 2d 310, 114 S. Ct. 346 (1993). Dismissal is appropriate only if it appears beyond doubt that a plaintiff can prove no set of facts consistent with the complaint that would entitle it to the relief it seeks. McLain v. Real Estate Bd. of New Orleans, Inc., 444 U.S. 232, 246, 62 L. Ed. 2d 441, 100 S. Ct. 502 (1980) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957)).
I. Count VII
A. Defendant McCormick
The only allegations in the complaint that substantively implicate McCormick are contained in paragraph 77. Therein it is alleged that McCormick was jointly engaged with state actors Welcker and Fasbender and intentionally or recklessly interfered with plaintiff's continued expectation of employment by giving false and misleading information to Welcker about plaintiff's disciplinary actions toward his son and by encouraging Welcker to force plaintiff to resign because of plaintiff's disciplinary actions toward McCormick's son. McCormick seeks dismissal of the section 1983 claim against him because, inter alia, it is not alleged that he is a state actor or acting under color of state law.
While plaintiff makes a cursory argument that McCormick is in fact a state actor based on his status as assistant superintendent/business manager of the DeKalb School District, such argument fails because it is clear from the complaint that McCormick's conduct arose not out of his position with the DeKalb school system but from his status as a parent of a child in another school district independent from the one with whom he was employed. Plaintiff argues alternatively, however, that she has properly alleged that McCormick was a state actor by virtue of his participating in joint action with other state actors.
To avoid the motion to dismiss, plaintiff must allege that McCormick, a private person, was acting under color of state law when he falsely discussed plaintiff's discipline of his son and encouraged Welcker to force plaintiff's resignation. See Leahy v. Board of Trustees of Community College Dist. No. 508, 912 F.2d 917, 921 (7th Cir. 1990). A private defendant acts under color of state law for purposes of section 1983 when he is a wilful participant in joint action with the state or its agents. Id. The complaint must contain allegations supporting the conclusion or inference that the defendant has either acted as an instrumentality of the state, performed traditionally exclusive sovereign functions or been compelled or encouraged by the state to engage in the challenged conduct. Id.
Here, the mere allegation that McCormick was jointly engaged with state actors is insufficient. Plaintiff's complaint, however, further points to McCormick's giving of false and misleading information to Welcker and his encouragement of Welcker for plaintiff's resignation. These further allegations also fail to state a claim of state action based on joint action. Providing information (false or otherwise) and encouraging a state actor to act in a certain way, without more, does not constitute joint action. Furthermore, these allegations are actually inconsistent with plaintiff's theory of joint action. If, for instance, McCormick and Welcker were in cahoots, then McCormick would not need to give false and misleading information to Welcker, nor would he need to encourage Welcker to carry out his will. Plaintiff has simply not set forth allegations, which if proven, would show that McCormick was jointly engaged with Welcker and Fasbender to deprive plaintiff of her constitutional rights. Thus, the court dismisses Count VII to the extent it names McCormick as a defendant individually.
B. Defendants Board and Welcker (official capacity)3
These defendants maintain that Count VII should be dismissed as to the Board and Welcker in his official capacity as there are no allegations of an official policy or custom that would bind the Board for the actions of Welcker.
A local governmental unit, such as the Board here, is subject to suit under section 1983 because it is deemed a person within the meaning of that provision. Baxter v. Vigo County Sch. Corp., 26 F.3d 728, 734 (7th Cir. 1994). A local governmental unit may not be found liable, however, under a theory of respondeat superior. Id. It is only when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the local government as an entity is responsible under section 1983. Id. Case law has identified three situations in which local government can be said to have violated the civil rights of a person because of its policy: (1) an express policy that, when enforced, causes a constitutional deprivation; (2) a widespread practice that, although not authorized by written law or express municipal policy, is so permanent and well-settled as to constitute a custom or usage with the force of law; or (3) an allegation that the constitutional injury was caused by a person with final policymaking authority. Id. at 735.
In the present case, the complaint is devoid of any allegations of any official policy or custom that resulted in any of the acts or omissions directed toward plaintiff. Furthermore, there are no allegations that Welcker was a person with final policymaking authority sufficient to bind the Board. While it is true that a single act or decision of a final policymaker can establish liability on the part of the Board, it must first be alleged that Welcker is such a policymaker. See Baxter, 26 F.3d at 735. No such allegations are present here. Accordingly, the court dismisses Count VII as to the Board and Welcker in his official capacity.
C. Welcker (individual capacity)
Welcker and the Board contend that Count VII does not adequately allege claims for denial of plaintiff's constitutional rights. Welcker also argues that he cannot be held liable in his individual capacity because Count VII does not allege either that he, as a supervisor, knew of a constitutional violation and recklessly permitted it to occur or that he personally intended plaintiff to be the victim of discrimination through others.
The substantively operative allegation in Count VII is paragraph 76 which states:
"The [Board] and Welcker, acting under color of state law, did deprive Howard of her liberty and property interests as well as equal protection of the laws and due process when they:
a. subjected her to disparate treatment because of her gender in permitting Howard to be sexually harassed;