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KISER v. NAPERVILLE COMMUNITY UNIT
August 29, 2002
MICHAEL L. KISER, PLAINTIFF,
NAPERVILLE COMMUNITY UNIT, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Joan B. Gottschall, United States District Judge.
MEMORANDUM OPINION & ORDER
Plaintiff Michael L. Kiser pursues this action against his former
employers, Naperville Community School District 203, DuPage and Will
Counties, Illinois, and the Board of Education of Naperville Community
School District 203 (collectively, the "District"), along with Donald E.
Weber, in his official capacity as Superintendent of the District, and
seven individually named Board members ("Board Members"), also in their
official capacities. In his three-count complaint, Kiser alleges that
defendants: (1) violated his fights under the Age Discrimination in
Employment Act of 1967 ("ADEA"), 29 U.S.C. § 621 et seq.; (2)
breached his employment contract; and, in the alternative to Count 1, (3)
deprived him of his First and Fourteenth Amendment rights. The District
moves to dismiss the complaint pursuant to Fed.R.Civ.P. 12(b)(1) and
12(b)(6), and to strike Kiser's request for punitive damages. Weber and
the Board Members have filed a separate motion to dismiss all claims
against them as individuals. For the reasons set forth below, the motions
are granted in part and denied in part.
In July 1999, Kiser entered into a four-year employment contract with
the District for the position of Executive Administrator. This contract
included the following relevant provisions. First, it provided five
grounds for terminating Kiser's employment contract: mutual agreement,
death, permanent disability, cause, or irreconcilable differences.
Second, it stipulated that should the Board terminate Kiser's contract
for irreconcilable differences, it would reclassify Kiser to a different
position and continue to pay him the contractual salary until the
expiration of the contract, provided that Kiser release all claims,
rights, or causes of actions that he might have against it. Kiser asserts
that these provisions were part of his consideration for the contract,
because pursuant to 105 ILCS 5/24-11, he had to relinquish his tenure
rights upon entering this contract. Third, the contract added to Kiser's
retirement benefits. Should Kiser give two-years notice of his intent to
retire at the end of his contract to take a TRS annuity, he would receive
salary increases of twenty percent of the prior year's salary in each of
the last two years of employment, partial payment at retirement for
unused sick days, and access to the District's group life insurance for
ten years after retirement.
In March 2001, Kiser gave the District notice that he intended to
retire on June 30, 2003 when the contract expired. He would then be 55
years old, the minimum age permitted to receive a retirement annuity of
74.6% of his final average salary under Illinois law. 40 ILCS 5/16-132.
On April 25, 2001, Kiser met with two members of the Board to discuss his
retirement letter. These two members informed Kiser that "it would be
more cost effective to eliminate the position of in-house counsel."
(Compl. ¶ 22.) They confirmed their intention to eliminate Kiser's
position in a letter dated April 27, 2001. On June 12, 2001, the District
offered to reclassify Kiser. The offer included a reduced salary and
required Kiser to waive all claims against the District and the Board.
Kiser attempted to accept the offer of reclassification, including the
reduced salary, but conditioned acceptance on the reservation of any
potential claims. The District rejected Kiser's counter-offer.
On June 25, 2001, the Board unanimously approved a resolution to
eliminate the position of General Counsel, and Kiser was terminated on
June 30, 2001. Kiser alleges that at no time did the District provide him
with either a pre-termination or post-termination hearing, nor did it
explain why it was terminating Kiser's employment position except to
state that it was "cost effective." (Id. ¶ 62.) Kiser claims that
the Board terminated him to prevent him from remaining employed until age
55 to avoid paying him "age-based retirement benefits." (Id. ¶ 32.)
He further contends that the District replaced him with younger employees
and contractors. Finally, he notes that "cost effectiveness" was not a
ground for termination under the contract. (Id. ¶ 57.) Based on
these allegations, Kiser brings two counts: violation of the ADEA (Count
1) and breach of contract (Count 2).
The bulk of Count 3 is premised on alternative causal stories. In
1997, with permission from the Board, Kiser began
dating a member of the
Board, Livia McCammon, whom he eventually married in early 1999. During
1998-1999, McCammon and three other former Board members attempted
unsuccessfully to replace Weber as Superintendent. Kiser refused to
publicly oppose these attempts. Kiser claims that defendants retaliated
against him because he remained silent. In April of 1999, a Board Member
told Kiser that his career would be "ruined" if he did not tell his wife
to either end her opposition to Weber or resign. (Id. ¶ 66.) Kiser
alleges that on January 3, 2000, Weber removed him from the
Administrative Cabinet (the District Management Committee), informing
Kiser that the reason for his removal was that it was "obvious that [he
didn't] control [his] wife."*fn1 (Id. ¶ 69.) Kiser claims that
defendants retaliated against him for associating with McCammon.
Finally, Kiser alleges that defendants' reason for terminating him, cost
effectiveness, was a pretext and that similarly situated employees were
treated differently than he was.
Because of, "but not limited to," these acts (id. ¶ 70), Kiser
brings Count 3 under § 1983 alleging violations of his First and
Fourteenth Amendment fights. Specifically, Kiser claims that the District
retaliated against him for exercising his freedom of speech and freedom
of association rights, deprived him of his substantive and procedural due
process rights, and violated his right to equal protection.
In ruling on a motion to dismiss pursuant to Fed.R.Civ.P. 12
(b)(6), the court assumes the truth of the facts alleged in the complaint
and draws all reasonable inferences in favor of the plaintiff Sanville
v. McCaughtry, 266 F.3d 724, 732 (7th Cir. 2001). "A court may dismiss a
complaint only if it is clear that no relief could be granted under any
set of facts that could be proved consistent with the allegations."
Hishon v. King & Spalding, 467 U.S. 69, 73 (1984). Under
Fed.R.Civ.P. 10(c), "[a] copy of any written instrument which is an exhibit
to a pleading is a part thereof for all purposes." Thus, the court
considers the exhibits attached to Kiser's complaint for the purpose of
these motions to dismiss. See Wright v. Associated Ins. Cos., Inc.,
29 F.3d 1244, 1248 (7th Cir. 1994). Failure to state a federal claim is
the basis of defendants' jurisdictional argument, so their invocation of
Rule 12(b)(1) does not affect the standard of review. See Peckmann v.
Thompson, 966 F.2d 295, 297 (7th Cir. 1992) ("If a defendant's
Rule 12(b)(1) motion is an indirect attack on the merits of the plaintiff's
claim, the court may treat the motion as if it were a Rule 12(b)(6)
motion to dismiss for failure to state a claim upon which relief can be
Kiser requests punitive damages. The District asserts that punitive
damages are not recoverable against municipal corporations, citing
chiefly City of Newport v. Fact Concerts, Inc., 453 U.S. 247 (1981). The
holding of Fact Concerts is limited to § 1983 claims, id. at 271, but
the discussion reveals that punitive damages against municipal
corporations are also barred under Illinois law, id. at 260 (citing
Chicago v. Langlass, 52 Ill. 256, 259 (1869)). None of the cases cited by
the District involves the ADEA. In Pfeiffer v. Essex Wire Corp.,
682 F.2d 684, 688 (7th Cir. 1982), the Seventh Circuit held that punitive
damages and damages for pain and suffering — beyond the statutorily
prescribed liquidated damages limit for "willful violations,"
29 U.S.C. § 626 (b) — are not available under the ADEA.
Subsequent to Pfeiffer, the Supreme Court clarified that "Congress
intended for liquidated damages [under the ADEA] to be punitive in
nature." Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 125
(1985). Unlike other types of punitive damages, liquidated damages for
willful violations of the ADEA are available against municipal
corporations. See, e.g., Kossman v. Calumet County, 800 F.2d 697, 702
(7th Cir. 1986), overruled on other grounds by Coston v. Plitt Theatres,
860 F.2d 834, 836 (7th Cir. 1988); Orzel v. Wauwatosa Fire Dep't,
697 F.2d 743 (7th Cir. 1983).
The result is a mixed bag for the District. Because a school district
is treated like a municipal corporation, Sherman v. Community Consol.
Sch. Dist., 714 F. Supp. 932, 938 n. 5 (N.D. Ill. 1989), the District is
immune from a punitive damages award on Kiser's federal constitutional
and state law claims. Kiser may nonetheless be entitled to recover
liquidated damages from the District under the ADEA. Reading the
complaint in the light most favorable to Kiser and taking Trans World
Airlines into account, this court interprets Kiser's request for punitive
damages as seeking such liquidated damages. Accordingly, the District's
motion to strike Kiser's request for punitive damages is granted in part
and denied in part.
C. Count 1: Age Discrimination
The District moves to dismiss Kiser's ADEA claim on two grounds.
First, it contends that Kiser falls into a category of employees which is
not covered by the ADEA. Alternatively, it argues that Kiser has not
alleged age-based discrimination.
1. Definition of Employee
The ADEA protects only "employees," a category that is defined to
any person elected to a public office in any State or
political subdivision by the qualified voters
thereof, or any person chosen by such officer to be on
such officer's personal staff, or an appointee on the
policymaking level or an immediate adviser with
respect to the exercise of the constitutional or legal
powers of the office.