United States District Court, N.D. Illinois, Eastern Division
June 2, 2004.
DANIELLE HOWELL, Plaintiff,
NORTH CENTRAL COLLEGE, THE TRUSTEES OF NORTH CENTRAL COLLEGE, BY AND THROUGH ITS CHAIRMAN, RICHARD NORENBERG, WALTER JOHNSON, LINDA OLSON, KAREN SEREMET, Defendant.
The opinion of the court was delivered by: EDWARD BOBRICK, Magistrate Judge
Before the court is the motion of plaintiff Danielle Howell for
leave to file an Amended Complaint pursuant to Fed.R.Civ.P. 15.
Plaintiff attended North Central College from September of
1998, until June of 2003, and played on the women's basketball
team for a little more than two seasons. During that time, she
claims to have been targeted for harassment because she is a
heterosexual. On October 4, 2002, plaintiff filed a four-count
complaint, charging the college and the other defendants with
sexual harassment in violation of Title IX of the Educational
Amendments of 1972, 20 U.S.C. § 1681 et seq., violation of her
due process rights under 42 U.S.C. § 1983, and intentional and
negligent infliction of emotional distress. Since that time, the
court has dismissed plaintiff's Title IX claims against the
individual defendants, her § 1983 claims against all defendants,
and all her claims against defendant Richard Norenberg. Now, plaintiff seeks to file an amended complaint which would add a
claim of retaliation in violation of Title IX, and a claim for
breach of contract.*fn1
I. PLAINTIFF'S ALLEGATIONS
The core of plaintiff's allegations have not changed from her
original complaint to her amended complaint. Plaintiff
matriculated at North Central College in Naperville, Illinois, in
the fall of 1998. According to plaintiff, she was a productive
member of the women's basketball team during her sophomore and
junior seasons. At that time, the head coach was Linda Olson, and
Karen Seremet was, apparently, an assistant coach. (Complaint at
Law, ¶¶ 12-13; Amended Complaint at Law, ¶¶ 12-13). Plaintiff
alleges that Olson began to exclude her from certain team
activities at the beginning of her junior season in 2000.
(Complaint at Law, ¶ 18; Amended Complaint at Law, ¶ 18).
During a team luncheon on November 17, 2000, plaintiff voiced
her opposition to homosexuality. According to plaintiff, both
Olson and Seremet told her not to express her opinion on the
subject. (Complaint at Law, ¶ 20; Amended Complaint at Law, ¶
20). Plaintiff alleges that, shortly thereafter, she overheard
Seremet and another player speculating as to plaintiff's sexual
preferences. (Complaint at Law, ¶ 21; Amended Complaint at
Law, ¶ 21). She also alleges that Seremet repeatedly talked to
plaintiff about lesbian activity in an effort to "indoctrinate"
her. (Complaint at Law, ¶ 21; Amended Complaint at Law, ¶
21). Plaintiff claims that, because she resisted "lesbian
doctrinarian," Olson decreased her playing time in favor of an
inferior player. (Complaint at Law, ¶ 22; Amended Complaint at
Law, ¶ 22). Olson also told plaintiff she was no longer allowed
to wear ribbons in her hair because it was "too feminine."
(Complaint at Law, ¶ 23; Amended Complaint at Law, ¶ 23).
Plaintiff claims that, as a result of indoctrination efforts,
dress code requirements, and unbalanced personal criticism, she
was forced to leave the team. (Complaint at Law, ¶ 25; Amended
Complaint at Law, ¶ 25). According to plaintiff, Olson was seen
laughing and celebrating when plaintiff quit. (Complaint at
Law, ¶ 26; Amended Complaint at Law, ¶ 26).
According to both the original and amended complaint, in
December of 2000, plaintiff attempted to speak to the athletic
director, Walter Johnson, about her treatment in person and left
a phone message which he never returned. (Complaint at Law, ¶
27; Amended Complaint at Law, ¶ 27). Plaintiff's parents wrote
him a letter about the situation on May 4, 2001, with copies
going to the president of the college and the board of trustees.
(Complaint at Law, ¶ 27; Amended Complaint at Law, ¶ 27).
Shortly thereafter, the college asked for Coach Olson's
resignation and, when she refused, terminated her. (Complaint at
Law, ¶ 28; Amended Complaint at Law, ¶ 28). The athletic
director then promoted Karen Seremet to fill the vacancy.
(Complaint at Law, ¶ 29; Amended Complaint at Law, ¶ 29).
According to plaintiff, in September of 2001, she attempted to
resume contact with the team by playing basketball in an "open gym," but was
prevented from doing so by Seremet. (Complaint at Law, ¶ 30;
Amended Complaint at Law, ¶ 30). During the last week of
October in 2001, plaintiff asked to meet with Seremet.
(Complaint at Law, ¶ 31; Amended Complaint at Law, ¶ 31). At
that meeting, plaintiff alleges that Seremet told her that
because she had not performed the off-season recruiting and
fund-raising that the athletic director had told her and her
mother was required, she would not be allowed to rejoin the team.
(Complaint at Law, ¶ 31; Amended Complaint at Law, ¶ 31).
Plaintiff claims that neither she nor her mother had been
informed of such requirements. (Complaint at Law, ¶ 31;
Amended Complaint at Law, ¶ 31).
Plaintiff seeks to add two counts to her original complaint. In
the retaliation count she now seeks to add to her complaint, she
contends that defendants refusal to allow her to rejoin the team
was in retaliation for her complaints about sexual discrimination
and harassment. (Amended Complaint at Law, Count II). She also
contends that the defendants' conduct amounted to a breach of
contract, which was set forth in the college's catalogs,
handbooks, and policy statements, and which prohibited
discrimination on the basis of sexual orientation. (Amended
Complaint at Law, Count III).
While Federal Rule of Civil Procedure 15(a) instructs the
courts to give leave to amend a complaint freely "when justice so
requires," it does not mandate that leave be granted in every
case. Park v. City of Chicago, 297 F.3d 606, 612 (7th Cir.
2002). In particular, a district court may deny a plaintiff leave to amend
her complaint if there is undue delay, bad faith, dilatory
motive, or if the amendment is futile, or will result in undue
prejudice to the opposing party. Id. In this case, review of
plaintiff's proposed amendments demonstrates that they would be
futile and her Rule 15(a) motion must be denied.
A. Harassment "On the Basis of Sex" and Retaliation under Title
In her original complaint, filed over a year and a half ago,
plaintiff claimed that defendants subjected her to a course of
sexual harassment in violation of Title IX. Now, she seeks to add
the additional claim that defendants retaliated against her when
she complained about this treatment, also in violation of Title
IX. That statute provides that "[n]o person in the United States
shall, on the basis of sex, be excluded from participation in,
be denied the benefits of, or be subjected to discrimination
under any educational program or activity receiving Federal
financial assistance." 20 U.S.C. § 1681(a) (emphasis added). In
Franklin v. Gwinnett County Public Schools, 503 U.S. 60,
112 S.Ct. 1028 (1992), the Supreme Court determined that Title IX's
prohibition against discrimination was implicated in cases
involving sexual harassment. 503 U.S. at 75, 112 S.Ct. at 1037.
In so doing, the Court relied on a Title VII case, Meritor
Savings Bank, FSB v. Vinson. Franklin, 503 U.S. at 75, 112 S.Ct.
at 1037 (citing Meritor Savings Bank, FSB v. Vinson,
477 U.S. 57
, 106 S.Ct. 2399 (1986)). Since then, federal courts have
looked to Title VII precedent to inform their analyses of sexual
discrimination claims under Title IX. See Frazier v. Fairhaven
School Committee, 276 F.3d 52
, 66 (1st Cir. 2002) (same-sex
harassment); Doe v. University of Illinois, 138 F.3d 653
, 665 (7th Cir. 1998), vacated,
526 U.S. 1142, 119 S.Ct. 2016
(1999) (hostile environment); Murray
v. New York Univ. College of Dentistry, 57 F.3d 243, 248-249
(2nd Cir. 1995) (sexual harassment by teacher); Preston v.
Commonwealth of Virginia ex rel. New River Community College,
31 F.3d 203
, 206 (4th Cir. 1994) (employment discrimination).
Accordingly, Title VII precedent informs our analysis of whether
the protections of Title IX extend to plaintiff's proposed
Title VII, and presumably Title IX, protect persons from not
only discrimination on the basis of sex, but also from
retaliation for complaining about the types of discrimination
they prohibit.*fn2 Hamm, 332 F.3d at 1066; Hamner, 224
F.3d at 704. To advance such a claim, "it is sufficient if the
plaintiff has a sincere and reasonable belief that [s]he is
opposing an unlawful employment practice." Hamner, 224 F.3d at
706-07. Thus, even if the discrimination or harassment at issue
does not reach a degree sufficiently severe to implicate that
statutes' protections, a retaliation claim may, nevertheless, be
valid. 224 F.3d at 707. But, as the court has made clear, "the
complaint must involve discrimination that is prohibited by [the
statute]." Id. As the Seventh Circuit has explained, "[i]f a
plaintiff opposed conduct that was not proscribed by Title VII,
no matter how frequent or severe, then [her] sincere belief that
[she] opposed an unlawful practice cannot be reasonable." Id.
In this case, plaintiff alleges that she suffered same-sex
discrimination and harassment as a result of being a heterosexual. When she opposed this conduct,
according to her amended complaint, the defendants retaliated
against her. The issue, then, is whether Title IX prohibits the
type of discrimination of which she complains.*fn3
Resolution of this question requires an examination of not only
plaintiff's proposed retaliation claim, but her original same-sex
harassment claim as well.
Federal courts struggled with the issue of same-sex harassment
in a Title VII context until the Supreme Court's decision in
Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75,
118 S.Ct. 998 (1998). There, the Court stated that it saw no
justification in statutory language or Supreme Court precedent
for a categorical rule excluding same-sex harassment claims from
the coverage of Title VII. 523 U.S. at 79, 118 S.Ct. at 1002. The
Court cautioned, however, that the sexual harassment must meet
the statutory requirement that it constitute discrimination
because of sex. 523 U.S. at 81, 118 S.Ct. at 1002. Illustrating
this requirement, the Court offered examples of what form such
sexual harassment might take: Courts and juries have found the inference of
discrimination easy to draw in most male-female
sexual harassment situations, because the challenged
conduct typically involves explicit or implicit
proposals of sexual activity; it is reasonable to
assume those proposals would not have been made to
someone of the same sex. The same chain of inference
would be available to a plaintiff alleging same-sex
harassment, if there were credible evidence that the
harasser was homosexual. But harassing conduct need
not be motivated by sexual desire to support an
inference of discrimination on the basis of sex. A
trier of fact might reasonably find such
discrimination, for example, if a female victim is
harassed in such sex-specific and derogatory terms by
another woman as to make it clear that the harasser
is motivated by general hostility to the presence of
women in the workplace. A same-sex harassment
plaintiff may also, of course, offer direct
com-parative[sic] evidence about how the alleged
harasser treated members of both sexes in a mixed-sex
523 U.S. at 80-81, 118 S.Ct. at 1002. The Court did not suggest
that these examples are exhaustive, but they are instructive, and
it is clear that plaintiff's allegations do not fit any of them.
First, while plaintiff alleges her harassers were homosexual, she
does not allege she was the target of sexual proposals. Second,
there is no suggestion that the coaches were motivated by a
hostility toward females in an athletic setting. Indeed,
plaintiff alleges that certain females, less talented than she,
received favored treatment. Finally, as plaintiff's complaint and
amended complaint deal with an all-female milieu, the last
example is inapplicable.
We noted that the Oncale Court's list of actionable same-sex
harassment was instructive rather than exhaustive. Yet another
example of actionable same-sex harassment again, in a Title VII
context emerged from the Seventh Circuit's decision in Doe v.
City of Belleville, 119 F.3d 563 (7th Cir. 1997). That case
involved a claim of male, same-sex harassment, in which the
plaintiff, a sixteen-year-old who happened to wear an earring,
was subjected to constant, mostly verbal, abuse by his significantly
older male co-workers. 119 F.3d at 567. They called him
derogatory names for homosexual, questioned his gender, and
threatened him with sexual assault. Id. On one occasion a
co-worker grabbed his crotch "to finally find out if [he was] a
girl or a guy." Id. The court found this type of same-sex
harassment to be actionable discrimination based on sex, relying
in part on the Supreme Court's decision in Price Waterhouse v.
Hopkins, 490 U.S. 228, 109 S.Ct. 1775 (1989), which held that
Title VII did not permit a female employee to be discriminated
against because her dress, appearance, or conduct did not conform
to stereotypical ideas of femininity. 490 U.S. at 251, 109 S.Ct.
at 1198. The Seventh Circuit analogized that, "[i]n the same way,
a man who is harassed because his voice is soft, his physique is
slight, his hair is long . . . is harassed `because' of his sex."
Doe, 119 F.3d at 581. Thus, the court found that "gender
stereotyping" establishes the link to a plaintiff's sex that
Title VII requires. Id. Harassment that relies "upon
stereotypical notions about how men and women should appear and
behave," according to the court, reasonably suggests that it can
be attributed to sex. Id. This "gender stereotype" harassment,
however, must be distinguished from harassment based on sexual
orientation or preference.
In the context of Title VII, the Seventh Circuit has
consistently held that harassment based on one's sexual
preference or orientation is not actionable. Hamm v. Weyauwega
Milk Products, Inc., 332 F.3d 1058, 1062 (7th Cir. 2003);
Spearman v. Ford Motor Co., 231 F.3d 1080, 1084 (7th Cir.
2000); Hamner v. St. Vincent Hosp. and Health Care Center, 224
F.3d 701, 707 (7th Cir. 2000); Ulane v. Eastern Airlines, Inc.,
742 F.2d 1081, 1085 (7th Cir. 1984). Instead, in same-sex
harassment cases, the court has maintained that the central
question is whether harassment occurred "`because of a
plaintiff's sex.'" Hamm, 332 F.3d at 1062 (quoting Hamner,
224 F.3d at 704). In other words, same-sex harassment is
actionable when it constitutes discrimination "`against women
because they are women and against men because they are men.'"
Spearman, 231 F.3d at 1084 (quoting Ulane, 742 F.2d at 1085).
Under this line of reasoning, the Seventh Circuit has taken pains
to differentiate between discrimination or harassment motivated
by gender stereotyping which is actionable and discrimination
or harassment motivated by sexual orientation which is
The differentiation is not always obvious. In Spearman, the
plaintiff, who was a homosexual but had not made that known at
his job, claimed he was subjected to harassment because his
"co-workers perceived him to be too feminine to fit the male
image" at his auto plant. 231 F.3d at 1085. The plaintiff was
referred to as a "bitch," was compared to a famous drag queen,
and was assigned tasks "traditionally reserved for women." Id.
He was also referred to as "gay" or a "fag." 231 F.3d at 1086. One of
plaintiff's harassers claimed that co-workers had observed
plaintiff looking them over "like a man would take a full look at
a woman." 231 F.3d at 1082. Overall, however, the court felt the
record demonstrate that the plaintiff was maligned because of his
"apparent homosexuality," and that his harassers were motivated
by their "suspicion of [his] sexual orientation and his perceived
desire for some sort of intimacy with them." 231 F.3d at 1085.
Similarly, in Hamm, the court attributed the plaintiff's
harassment to his co-workers' apparent belief about his sexual
orientation; although in that case, the plaintiff was not a
homosexual. 332 F.3d at 1062-65. The plaintiff there was called a
"faggot", "bisexual", and a "girl scout" and, like the plaintiff
in Spearman, co-workers accused him of "sizing [them] up." 332
F.3d at 1060. While the plaintiff argued that his case was
distinguishable from Spearman in that he was not a homosexual,
the court refused to focus on a plaintiff's sexuality in
determining whether he was a victim of gender stereotyping. 332
F.3d at 1065.
As the Seventh Circuit has acknowledged, filtering
discrimination based on failure to adhere to gender stereotypes
and discrimination based on sexual orientation renders the
picture of what might constitute a claim for gender stereotyping
anything but focused. Hamm, 332 F.3d at 1065 n. 5.
Stereotypical notions about how men and women should behave will
often necessarily blur into ideas about heterosexuality and
homosexuality. A homosexual male exhibiting an attraction toward
other males in the workplace would not be behaving as a man would
stereotypically be expected to behave. Yet, in Spearman, when the plaintiff purportedly looked at men the way a man would take
a "full look at a woman" and gave his co-workers the impression
that he was a homosexual, his case was no longer about gender
stereotypes. It appears that the line is crossed once the
plaintiff's behavior or appearance no longer strikes his
harassers as merely effeminate assuming the plaintiff is a male
and begins to give them the impression that he is a homosexual.
One would assume the same would be true of a case involving a
female plaintiff exhibiting masculine traits, although it is easy
to imagine that a case involving such a plaintiff would involve a
full complement of lesbian epithets, making it difficult to draw
In this case, the line is not as difficult to draw, as
plaintiff's allegations leave no room for doubt about the
motivation of her purported harassers. According to her
complaints, the defendants began their course of harassment when
she expressed her opposition to homosexuality. Plaintiff claims
she was pressured to change those views or to keep them to
herself, and that the defendants' course of harassment was
designed with the hope of achieving those ends. Plaintiff's
behavior, or defendants' impressions of her behavior, unlike the
plaintiffs in Spearman or Hamm, was not a precipitating
factor in the course of harassment. Instead, plaintiff's
allegations indicate it was her beliefs on homosexuality and
perhaps not even her heterosexuality that motivated her
harassers. That is not a claim for sexual harassment under a
gender stereotyping theory. It would probably not even be a claim
for sexual harassment if discrimination based on sexual
orientation were cognizable. It appears plaintiff has tried to
wedge a protected speech claim where it will not fit: into Title IX's prohibition against discrimination on the basis of sex.
Even if the protected speech tenor of plaintiff's complaint and
amended complaint were ignored, they could still not be
interpreted as stating a claim for gender stereotyping. Plaintiff
fit, it would seem, the stereotypical notions about how women
should appear and behave, and this is what made her a target. In
fact, she contends she was chastised for wearing ribbons in her
hair because it was "too feminine." There is simply nothing in
plaintiff's complaint or amended complaint that suggests she was
a victim of "gender stereotyping."
Tellingly, plaintiff sums up her case this way in her reply
brief: "[h]ad she been homosexual, this case would not exist."
(Plaintiff's Reply to the Defendant's Response, at 4).*fn5
Thus, her own characterization of her case is no different from
the court's characterization: her complaints are simply not about
harassment based on gender stereotyping. Regarded in the best of
lights, they are about harassment based on sexual preference, which is not actionable under Title VII or Title IX.
In fact, arguably, they are about protected speech, which falls
even farther from the purview of those provisions. In either
case, the harassment that plaintiff opposed did not violate Title
IX. Hamm, 332 F.3d at 1066; Hamner, 224 F.3d at 707.
Consequently, she cannot amend her complaint to allege a claim
for retaliation because such amendment would not survive a motion
That being said, it is clear from our review of plaintiff's
original sexual harassment claim a review necessitated by her
proposed addition of a retaliation claim that it, too, would
not survive a motion to dismiss. Plaintiff's sexual harassment
claim is, as already discussed, based solely on sexual
orientation. Throughout her complaint and amended complaint,
there is neither suggestion nor intimation that the harassment
she suffered was motivated by anything other than her sexual
orientation. Although her proposed retaliation claim raised the
issue of whether her harassment claim was cognizable under Title
IX, and she had the opportunity to argue the matter in her briefs
supporting her motion to amend, she maintained that her case was
about sexual orientation. Throughout her reply brief, she argues
that "she was driven off the team because the coaches only wanted
gay players and/or gay friendly players on the team."
(Plaintiff's Reply to Defendant's Response to Plaintiff's
Rule 15(a) Motion, at 4). She complains that she missed nearly two
basketball seasons because "she would not blend into the team's
homosexual environment" and because she "was against
homosexuality." (Plaintiff's Reply to Defendant's Response to
Plaintiff's Rule 15(a) Motion, at 4-5). Contending that "the
homosexual and homosexual friendly coaches treated [her] differently because she was not homosexual or homosexual
friendly," plaintiff submits that "[t]he sexual orientation of
every coach and the applicable player is relevant" to this case.
(Plaintiff's Reply to Defendant's Response to Plaintiff's
Rule 15(a) Motion, at 7). And, again, most tellingly, she explains
that "[h]ad she been homosexual, this case would not exist."
(Plaintiff's Reply to Defendant's Response to Plaintiff's
Rule 15(a) Motion, at 4). Plaintiff's complaint, amended complaint,
and her arguments leave no doubt at all that this case is about
sexual orientation and nothing else. Accordingly, under these
circumstances, and in view of the fact that plaintiff has already
argued at length as to the nature of her sexual harassment claim,
we find it appropriate to dismiss that claim, Count I, sua
B. State Law Breach of Contract Claim
Plaintiff also seeks to add a breach of contract claim to her
complaint. According to plaintiff, a valid and enforceable
contract existed between her and the college "consisting of the Defendant North [Central College's] catalogs, manuals
handbooks, policy statements and brochures." (Amended Complaint
at Law, Count VI). More specifically, plaintiff claims that the
student handbook prohibited discrimination in athletic programs
on the basis of sex and sexual orientation, and that the faculty
handbook prohibited faculty members from engaging in
discrimination on the basis of sex and sexual orientation.
(Amended Complaint at Law, Count VI). Given our disposition of
the plaintiff's Title IX sexual harassment and retaliation
claims, however, we must deny her motion to add this claim.
Dismissal of plaintiff's sexual harassment and retaliation
claims leaves only state law claims in this matter, over which
the court had supplemental jurisdiction. 28 U.S.C. § 1367(a).
With the sole basis for invoking federal jurisdiction gone, the
general rule is that the district court should relinquish
jurisdiction over pendent state law claims rather than resolve
them on the merits. 28 U.S.C. § 1367(c)(3); Williams v. Aztar
Indiana Gaming Corp., 351 F.3d 294, 300 (7th Cir. 2003).
Plaintiff's breach of contract claim, then, would not survive a
motion to dismiss and, accordingly, plaintiff's motion to add
that claim is denied as futile.*fn7 In addition, her two
remaining state law claims intentional and negligent infliction of emotional distress under Counts IV and V are also
dismissed under § 1367(c)(3).
When plaintiff initiated this lawsuit, she alleged that she had
been harassed due to her sexual orientation. In her motion to
amend, she sought to add a retaliation claim and a breach of
contract claim, seventeen months later, despite knowing the
information upon which she based these claims all along.
Plaintiff's proposed retaliation claim was, necessarily,
inextricably tied to her sexual harassment claim, and her motion
to amended consequently prompted an examination of her original
claim. Because that examination failed to reveal the slightest
implication that her claim might be based on anything other than
sexual orientation, which is not protected under Title IX, her
motion to add the retaliation claim must be denied, and her
original harassment claim must be dismissed sua sponte. As a
consequence of that, the court declines to exercise supplemental
jurisdiction over her proposed breach of contract claim, as well as her remaining state
For the foregoing reasons, plaintiff's motion to amend her
complaint is DENIED, and her complaint is hereby dismissed sua