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HOWARD v. BOARD OF EDUC. OF SYCAMORE COMMUNITY UNI

July 21, 1995

DR. KAROL K. HOWARD, Plaintiff,
v.
BOARD OF EDUCATION OF SYCAMORE COMMUNITY UNIT SCHOOL DISTRICT NO. 427, et al., Defendants.



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

 INTRODUCTION

 Plaintiff, Karol K. Howard, filed a five-count, amended complaint *fn1" against defendants, Board of Education of Sycamore Community Unit School District No. 427 (the Board), Charles McCormick (individual capacity) and Jeffrey Welcker (individual capacity), seeking relief under 42 U.S.C. § 2000e et. seq. (Title VII), 20 U.S.C. § 1681 et. seq. (Title X) and 42 U.S.C. § 1983. Jurisdiction is premised on 28 U.S.C. § 1331, and venue is proper as all complained of conduct occurred in this division and district. All defendants have moved to dismiss the various counts against them, and the Board has also moved to strike Counts I-III from the amended complaint.

 FACTS

 The following facts are taken from plaintiff's amended complaint. The court will not repeat the background factual allegations of the amended complaint to the extent they are the same as contained in the original complaint and set forth in this court's prior order, See Howard v. Board of Educ. of Sycamore Community Unit Sch. Dist. No. 427, 876 F. Supp. 959 (N.D. Ill. 1995). *fn2" Suffice it to say that plaintiff claims she was subject to sexually offensive comments, both written and oral, made by both fellow teachers and students. She further claims that Welcker was made aware of such conduct and, additionally, that because of Welcker's awareness the Board had knowledge.

 Specifically, in Count IV (against the Board only), plaintiff alleges that she was sexually harassed in violation of Title IX, which affected a term, condition or privilege of her employment with the Board. In particular, she alleges that she complained to Welcker and Julie Wheeler (executive director for business and personnel) about the sexual harassment, "which included notes of a sexually offensive nature being posted about Howard." She also complained to Jeff Clapsaddle (junior high school principal) about sexually offensive comments by Dennis Durbin, a male teacher, about female students. She also observed offensive comments by a male teacher about a female teacher. It is further alleged in Count IV that the Board knew of the hostile environment and inappropriate conduct of Durbin and took no steps to correct the hostile environment or inappropriate conduct. *fn3" Additionally, plaintiff alleges that the hostile environment was an implied permanent condition of her employment because of the Board's and Welcker's refusal to eliminate the sexually hostile and harassing work environment, that she was constructively discharged because of her complaints and that the actions of the Board were "intentional, willful and calculated toward [plaintiff]."

 As for McCormick, plaintiff alleges in Count V that he knew of plaintiff's complaints regarding his son's inappropriate conduct, including the posting of sexually explicit signs and engaged in a conspiracy with state actors, Welcker, Hammond and Wheeler to deprive plaintiff of her civil rights. The alleged conspiracy consisted of meetings between Welcker and McCormick, between Wheeler and McCormick, and between McCormick and Hammond, all of which discussed plaintiff and her complaints about McCormick's son. Plaintiff further alleges that "such meetings had as their purpose the removal of [plaintiff] from her position."

 Plaintiff also claims in Count II that she was denied her procedural due process "rights to a hearing pursuant to [Board] and state regulations when they decided to terminate her services by" constructively discharging her. She further alleges that she engaged in constitutionally protected speech involving her complaints of sexual harassment *fn5" and that such speech was, for purposes of the First Amendment, an issue of public concern.

 CONTENTIONS

 McCormick contends that Count V should be dismissed as to him as the only theory alleged, conspiracy with state actors, is defective for failing to allege, expressly or implicitly, the existence of an agreement between McCormick and the state actors to deprive plaintiff of her civil rights.

 As to the Title IX claim in Count IV, the Board argues it should be dismissed because plaintiff has no private cause of action under Title IX and, alternatively, because plaintiff has not stated a claim under Title IX.

 The Board further contends that the equal protection claim in Count V should be dismissed because: (1) there are no allegations that it established a constitutionally infirm policy; (2) there are no allegations that it engaged in any wrongdoing that caused plaintiff injury; (3) there are no allegations that Welcker or any other school official with whom plaintiff interacted has final policy-making authority; (4) there are insufficient allegations of an official unconstitutional custom or practice of disparate treatment of women; and (5) the allegations pertaining to Welcker's knowledge of sexual harassment is limited to students, who are not state actors under section 1983. As for plaintiff's due process claim, the Board contends that plaintiff, who was not a tenured teacher, had no protectible property interest in her job under Illinois law. Additionally, the Board maintains that plaintiff's First Amendment claim is defective because her complaints were a personal grievance and not a matter of public concern. Lastly, the Board argues that plaintiff's conspiracy claim in Count V must fail because plaintiff's constitutional rights were not violated, because (adopting McCormick's argument) there are no allegations of an agreement concerning the conspiracy and because such a claim is barred by the intracorporate conspiracy doctrine.

 Welcker contends that he should be dismissed in his individual capacity because, as a supervisor, he only knew of students' actions and the students were not state actors. Secondly, Welcker argues that because there are no allegations that he intended plaintiff to be the victim of discrimination he cannot be held liable as a supervisor under section 1983. Lastly, he posits that he is qualifiedly immune because plaintiff has not shown that closely analogous cases clearly established that his actions or inactions were unlawful.

 Finally, the Board and Welcker seek dismissal of any punitive damages claims against the Board or individuals acting in their official capacities.

 Plaintiff responds to McCormick's argument by contending that the allegations in paragraph 62 of her amended complaint allow a jury to infer that an agreement between the alleged conspirators existed.

 She further contends that under Supreme Court authority Title IX provides for a private right of action, is not duplicative of a Title VII cause of action and is not preempted in this context by Title VII. Furthermore, she points to paragraph 48 of her amended complaint as alleging knowledge of the sexual harassment on the part of the Board. She also argues that because she has incorporated the allegations of her Title VII claims into her Title IX count she has sufficiently alleged a claim under Title IX.

 Regarding Count V, plaintiff responds that: (1) paragraphs 49 and 59 of the amended complaint sufficiently allege a policy or custom of ignoring sexual harassment; (2) the contention of the Board that no school official had final policymaking authority is premature as she need not allege that element under Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 122 L. Ed. 2d 517, 113 S. Ct. 1160 (1993); (3) the Board's arguments concerning her equal protection and due process claims fail for the same reasons as argued in her response to the motion to dismiss her original complaint; (4) her First Amendment claim is based on a matter of public concern because she complained not only of sexually offensive conduct directed at her but also directed at other teachers and students; (5) she has sufficiently alleged in paragraph 62 that an agreement among the conspirators existed; (6) the intracorporate conspiracy doctrine does not apply as McCormick was not a Board employee; (7) Welcker was liable as a supervisor under section 1983 because, as alleged in paragraphs 31, 32, 38, 60 and 61 of ...


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