C. First Amendment
Not all speech by public employees is protected by the First Amendment such that the Constitution is violated if a public employer retaliates in response to that speech. Cliff v. Board of Sch. Comm'rs of the City of Indianapolis, 42 F.3d 403, 409 (7th Cir. 1994). Before such speech will be protected, it must address a matter of public concern, and the speaker's interest in her expression must not be outweighed by any injury the speech could cause to the interest of government, as an employer, in promoting the efficiency of the public services it performs through its employees. Id. Furthermore, unless the plaintiff can first establish that her speech addressed a matter of public concern, the court need not balance the respective interests. Id. That threshold question is one of law for the court. Id.
To determine, in this case, whether plaintiff's complaints about the sexually offensive comments were a matter of public concern, the court must consider the content, form and context of her complaints, with content being the most important. Id. Relevant to, but not dispositive of, this issue is the motive which underlies the employee's statements. Id. Thus, the employee's motive is considered along with the other factors. Id. at 410. The fact that an employee speaks, at least in part, for personal reasons will not automatically deprive her statements of constitutional protection. Id. Conversely, the fact that an employee speaks up on a topic of public import does not necessarily render her remarks on that subject protected. Id. Put another way, the public concern element is lacking as a matter of law if the speech concerns a subject of public interest but the expression addresses only the personal effect upon the employee. Id.
In the present case, plaintiff generally alleges that her complaints of sexual harassment were on "an issue of public concern." This conclusion, however, is belied by the more specific allegations of the amended complaint. It is clear from the allegations in paragraph 57 concerning the complaints that it was plaintiff personally who was offended and that she was not speaking for other teachers at the school when she voiced her complaints. See Cliff, 42 F.3d at 411. Paragraph 30 of the amended complaint does not satisfy the pleading requirements for this type of First Amendment claim. Plaintiff has simply failed to allege, other than in a generalized and conclusionary fashion, that her complaints were driven by her motivation to remedy sexually offensive conduct at the school for the benefit of others or the public at large. Therefore, the court dismisses plaintiff's First Amendment claim in Count V.
D. Equal Protection
1. The Board
The Board contends that the equal protection claim against it in Count V should be dismissed because plaintiff has not alleged a policy, custom or practice which causes disparate treatment of female teachers. The court has previously ruled in this order that plaintiff's allegations of custom or policy are sufficient. Therefore, the court denies the Board's motion to dismiss the equal protection claim on that basis.
Welcker contends that he is not individually liable under Count V because (1) he cannot be held liable as a supervisor under section 1983 because students are not state actors, (2) the amended complaint does not properly allege that he intended plaintiff to be the victim of discrimination through the actions of others, and (3) he is qualifiedly immune.
While an intent to harass is an essential element of an equal protection claim brought via section 1983 see Trautvetter v. Quick, 916 F.2d 1140, 1149 (7th Cir. 1990), the court considers the amended complaint to adequately allege such intent. Specifically, it is alleged in paragraph 60 that Welcker knew of plaintiff's complaints of sexual harassment and "intentionally took no action against the students to stop the harassment, thereby intentionally permitting the harassment to continue." These allegations adequately state an equal protection claim against Welcker.
E. Qualified Immunity
Welcker contends he is entitled to qualified immunity as to plaintiff's section 1983 claim because there is no clearly established law that he had a duty to take action in response to the students' allegedly sexually offensive conduct. The qualified immunity doctrine provides that government officials performing discretionary functions are generally shielded from liability for civil damages to the extent their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. McGrath v. Gillis, 44 F.3d 567, 569 (7th Cir. 1995). The doctrine is designed in such a way as to permit the resolution of many insubstantial claims on summary judgment and to avoid subjecting government officials either to the costs of trial or to the burdens of discovery in cases where the legal norms the officials are alleged to have violated were not clearly established at the time. Id. Absent allegations stating a violation of clearly established law, a defendant pleading qualified immunity is entitled to dismissal before the commencement of discovery. Id.
To defeat a claim of qualified immunity, a plaintiff must allege a cognizable violation of a constitutional right clearly established at the time of the alleged misconduct. Id. at 570. Whether a right is clearly established is a question of law, the proof of which is the plaintiff's burden. Id. Clearly established rights are those which are sufficiently clear that a reasonable official would understand that what he is doing violates that right. Id. The law at the time of the conduct in question must have been clear in relation to the specific facts confronting the public official when he acted. Id. Until a particular constitutional right has been stated so that reasonably competent officials would agree on its application to a given set of facts, it has not been clearly established. Id.
The court, in assessing the efficacy of any qualified immunity defense, should look to whatever decisional law is available to ascertain whether the law has been clearly established. Id. A sufficient consensus based on all relevant case law, indicating that the official's conduct was unlawful, is required. Id. Even if the law is clearly established, an official is qualifiedly immune if at the time of his conduct he held an objectively reasonable belief that his actions were lawful. Id.
In this case, plaintiff alleges that Welcker is liable under section 1983 because he knew of her complaints, intentionally took no action to stop the student harassment and intentionally permitted the harassment to continue. It is further alleged that Welcker was part of a conspiracy which "had as [its] purpose the removal of [plaintiff] from her position." There can be no doubt that during the time of this alleged conduct (August 1991 to May 1993) sexual harassment in the workplace was constitutionally actionable as a denial of equal protection if such harassment was intentional. See Trautvetter, 916 F.2d at 1149. As such, in a typical workplace, Welcker could not claim qualified immunity if he had an intentional hand in plaintiff's sexual harassment, even if such harassment occurred through plaintiff's fellow employees. Of course, a school is not a typical work environment in the sense that an employee (teacher) is surrounded by, and interacts with, a number of non-employees (students) within the workplace. Thus, the precise question presented here is whether a principal of a public school would be objectively reasonable in believing that his intentionally permitting students to harass a teacher and conspiring to remove the teacher because of her complaints did not violate the constitution.
Given the clearly established law surrounding sexual harassment in the workplace, combined with the unique role a principal plays in the administration of a public school, the court considers it to be objectively unreasonable to believe that a principal who intentionally permits students to sexually harass a teacher after the teacher voices complaints does not violate equal protection. Based on the allegations as they now stand, it cannot be said that Welcker, who allegedly knew of the sexual harassment via plaintiff's complaints and intentionally did nothing to stop it, could have held an objectively reasonable belief that his action or inaction was constitutionally appropriate. He, as the principal, is in a unique position to attempt to control the behavior of the students. Conversely, he has a responsibility to the teachers as well in his role as chief administrator of the school. Welcker cannot hide behind the curtain of qualified immunity simply because it was students who were the primary harassers. The court, therefore, denies Welcker's motion to dismiss based on qualified immunity. In doing so, the court recognizes that as the facts are developed in this case it may become evident that such unique circumstances existed in this case that it would have been objectively reasonable on Welcker's part to believe he was not violating the constitution. That, of course, is a matter more appropriately addressed in a summary judgment proceeding.
F. Intracorporate Conspiracy Doctrine
The intracorporate immunity doctrine bars a constitutional conspiracy claim under 42 U.S.C. § 1985 against the managers of a corporation who are jointly pursuing lawful business even though the acts within their employment are said to be discriminatory or retaliatory. Wright v. Illinois Dept. of Children & Family Serv., 40 F.3d 1492, 1508 (7th Cir. 1994); Hartman v. Board of Trustees of Community College Dist. No. 508, 4 F.3d 465, 469 (7th Cir. 1993); Doe v. Board of Educ. of Hononegah Sch. Dist. 207, 833 F. Supp. 1366, 1381 (N.D. Ill. 1993) (citing Travis v. Gary Community Mental Health Ctr., Inc., 921 F.2d 108, 110 (7th Cir. 1990)). The doctrine applies to conspiracy claims brought against school administrators and has been extended by this court to conspiracy claims under section 1983. Board of Educ. of Hononegah, 833 F. Supp. at 1381-82. It also applies even though the individuals were motivated, in part, by personal bias or animus. Hartman, 4 F.3d at 470. On the other hand, the doctrine would probably not apply where corporate employees are shown to have been motivated solely by personal bias. Id. Put another way, the doctrine bars conspiracy claims based on intracorporate discussions that result in discriminatory or retaliatory actions except in egregious circumstances. Wright, 40 F.3d at 1509.
Here, the conspiratorial allegations are that Welcker, other school officials and McCormick, a non-school official, conspired to deprive plaintiff of her civil rights. This conspiracy manifested itself, it is alleged, through meetings between Welcker and McCormick, Hammond and McCormick, and Wheeler and McCormick regarding plaintiff's complaints about McCormick's son and as to the removal of Howard from her job. To the extent plaintiff's conspiracy theory is premised upon McCormick's involvement, as a non-corporate player, it cannot be determined at this point whether such involvement defeats the intracorporate conspiracy defense. Moreover, it is impossible to discern, at this stage of the proceedings, whether the individual conspirators were motivated partly, solely or at all by personal animus toward plaintiff. Therefore, the court denies the motion to dismiss the conspiracy claim based on the intracorporate conspiracy doctrine.
Finally, the court dismisses the punitive damages claims against the Board for the reasons stated in its previous order. The court does not read the amended complaint as seeking punitive damages against Welcker and McCormick in their official capacities and therefore denies the motion to dismiss in that regard.
For the foregoing reasons, the court dismisses Count IV of the amended complaint. The court also dismisses the First Amendment and due process claims in Count V, dismisses the punitive damages claims against the Board and denies the motion to dismiss the equal protection claim in Count V. Lastly, the court grants the motion to strike Counts I - III to the extent those counts contain allegations different from plaintiff's original complaint.
PHILIP G. REINHARD, JUDGE
UNITED STATES DISTRICT COURT
DATED: July 21, 1995