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February 8, 1995

KAROL K. HOWARD, Plaintiff,

The opinion of the court was delivered by: PHILIP G. REINHARD


 Plaintiff, Karol K. Howard, filed a seven-count complaint against defendants, Board of Education of Sycamore Community Unit School District No. 427 (Board), Jeffrey Welcker, the principal of Sycamore High School (in both individual and official capacities) and Charles McCormick, the assistant superintendent/business manager of the DeKalb School District (in both individual and official capacities), seeking relief under 20 U.S.C. § 1681 et seq., 42 U.S.C. § 2000e et seq., and 42 U.S.C. § 1983. Jurisdiction arises under 28 U.S.C. § 1331, and venue is proper as all complained of actions occurred in this district and division. All three defendants have moved to dismiss plaintiff's complaint.


 The facts are derived from the allegations in plaintiff's complaint. Plaintiff was employed by the Board as chair of the music department and band director from August 1991 through May 1993. During that time, she satisfactorily performed her job duties and her performance evaluations reflected her satisfactory job performance. The Board, through its employees, Welcker and Mary Fasbender (executive director of personnel), forced plaintiff to submit a letter of resignation in lieu of termination proceedings before the Board. Following plaintiff's constructive discharge, the Board replaced plaintiff with a male who was less qualified than plaintiff and who did not meet the minimum requirements for the position.

 During plaintiff's employment, notes referring to plaintiff in a sexually offensive manner were posted. Plaintiff complained to Welcker and Julie Wheeler (executive director of business) about the sexual harassment. Plaintiff also complained to the junior high school principal about sexually offensive comments made by a male teacher about female students. Further, plaintiff observed offensive comments by a male teacher about a female teacher and offensive comments by male students. While Welcker and Wheeler were informed of such conduct, they took no steps to correct the hostile environment. Welcker also told plaintiff not to further complain about the harassment or "heads would roll." Thereafter, plaintiff continued to be subjected to sexual harassment until the time of her constructive discharge.

 Plaintiff also pleads three counts under Title IX, but against the Board only. Count IV realleges the essential allegations of plaintiff's sexual discrimination claim under Title VII (Count I) and further alleges that the Board's actions were "discriminatory, continuous, arbitrary, and capricious and constituted disparate treatment of [plaintiff] and, as such, were unlawful employment practices in violation of the Title IX." In Count V, plaintiff realleges her sexual harassment claim from Count II. As to Count VI, plaintiff realleges her retaliatory discharge and also alleges that the Board's conduct constituted unlawful employment practices in violation of Title IX.

 Lastly, plaintiff brings Count VII against the Board, Welcker and McCormick under section 1983. Specifically, Count VII alleges that

"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;
b. failed to give Howard her rights to a hearing pursuant to [Board] and state regulations when they decided to terminate her services by forcing her to take a 'constructive discharge'; and
c. constructively discharged Howard."

 It is further alleged that

"McCormick, who was jointly engaged with state actors Welcker and Fasbender, did intentionally, and/or recklessly, interfere with Howard's continued expectation of employment with the [Board] by:
a. Giving false and misleading information to Welcker regarding Howard's disciplinary actions towards his son at Sycamore High School; and
b. Encouraging Welcker to force the resignation of Howard because of Howard's disciplinary actions towards his son."


 McCormick seeks dismissal of Count VII against him in his official capacity. *fn1" He further contends that Count VII should be dismissed because there are no allegations that he was a state actor or that his actions were taken under color of state law. He also asserts that there are insufficient allegations that he jointly engaged with state actors so as to be acting under color of state law. Lastly, he maintains that Count VII does not state a claim for a denial of either due process or equal protection.

 Plaintiff responds initially that it is improper to hold her complaint to a "heightened pleading standard." Second, plaintiff contends that it is alleged that McCormick is a state actor because he is the assistant superintendent/business manager of the DeKalb School District or, alternatively, because he was jointly engaged with the Board and Welcker, both of whom are state actors. Finally, plaintiff asserts that she has alleged a deprivation of her property liberty interests as well as a denial of equal protection. In that regard, she contends that the right she is seeking to protect is not contractual but is instead her right not to be punished in retaliation for engaging in protected activity, such as complaining of sexual harassment under Title VII. She further contends that her liberty interest was violated when Welcker told her she was to be dismissed for poor interpersonal relations with the students. She also argues that she had a protectible property interest in her continued employment and was therefore entitled to procedural due process before being terminated. As to equal protection, plaintiff posits that she has stated an equal protection claim by alleging that defendants discriminated against her based on sex, permitted sexual harassment to continue after she complained and retaliated against her.

 Welcker and the Board, separate from McCormick, seek dismissal of the complaint for the following reasons. First, they contend that plaintiff's Title VII claims (Counts I - III) should be dismissed because she did not file a verified charge of discrimination with the Equal Employment Opportunity Commission (EEOC). Second, they assert that any claims occurring before March 9, 1993 are time-barred as plaintiff did not file her charge with the EEOC within 240 days of the alleged discrimination as she was required to do where, as here, Illinois is a dual filing state requiring an initial charge be filed with the Illinois Human Rights Department and no such initial filing occurred. Third, they contend that Counts I and II are deficient in that they do not allege a causal connection between plaintiff's resignation and her gender. Fourth, they argue that plaintiff has not adequately alleged any knowledge by defendants of harassing or hostile conduct toward plaintiff. Furthermore, she has not alleged that the complained of sexual harassment was so severe or pervasive as to alter the terms or conditions of her employment and create an abusive work environment. Fifth, they contend that in Count III plaintiff has not alleged a prima facie case of retaliation. Sixth, Welcker argues that he cannot be a defendant in a Title VII action because the employer is the only proper defendant. Seventh, Welcker seeks dismissal of the Title IX claims because he, as an individual, does not receive federal financial assistance. Eight, the Board contends that the Title IX counts are deficient because plaintiff has not alleged that it knew of any of the actions of its employees and, thus, it could not have harbored the intent to discriminate as required by Title IX. Ninth, the Board maintains that it cannot be held vicariously liable for the acts of its employees under Title IX absent knowledge by the Board. Tenth, defendants argue that, even if the Board knew of the alleged events, the complaint fails to state prima facie claims under Title IX for the same reasons set forth by defendants as to Title VII.

 Welcker and the Board further contend, as to Count VII, that the section 1983 claim must fail for lack of allegations as to an official custom or policy of the Board that caused her claimed constitutional deprivations. Additionally, defendants contend that plaintiff has neither alleged a protectible property interest or a deprivation of any liberty interest. They also argue that the equal protection claim is deficient because it contains no allegations of any disparate treatment resulting from an unlawful policy, custom or practice. Welcker also asserts that he must be dismissed in his individual capacity because the only allegations of his knowledge of wrongdoing as a supervisor pertain to the conduct of students, who were not state actors. Alternatively, he contends there are no allegations that he intended plaintiff to be the victim of discrimination. Further, Welcker argues he is protected by qualified immunity because a reasonable person in his position would not have considered the student misconduct to be unconstitutional and because no clearly established law made Welcker's failure to take corrective action the deliberate indifference necessary to constitute a constitutional deprivation. Lastly, Welcker and the Board contend that any claims for punitive damages should be stricken as such damages cannot be assessed against the Board or any individuals acting in their official capacities.

 Initially, plaintiff responds that the motion to dismiss filed by the Board and Welcker should be denied because it was not filed within 20 days of these defendants being served as required by Fed.R.Civ.P. 12(a)(1)(A). Plaintiff also makes a broad-based initial response that the motion to dismiss should be denied because it requires a "heightened pleading standard" contrary to 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 ...

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