The opinion of the court was delivered by: MORTON DENLOW, Magistrate Judge
MEMORANDUM OPINION AND ORDER
Plaintiff Danielle Howell asks this Court to alter or amend the
decision of June 2, 2004, in which Magistrate Judge Edward A.
Bobrick denied her motion to amend her complaint, and dismissed
her complaint sua sponte. For the reasons stated herein,
plaintiff's motion to alter or amend Magistrate Judge Bobrick's
June 2, 2004 decision is denied.
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 her time with the
team, she claims she was targeted for harassment because she is a
heterosexual. She filed her original four-count complaint on
October 4, 2002, which charged 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. On January 27, 2003,
Judge Suzanne B. Conlon dismissed plaintiff's Title IX claims
against the individual defendants, her § 1983 claims against all
defendants, and all her claims against defendant Richard
On March 15, 2004, the day discovery closed, plaintiff sought
leave to file an amended complaint to add a claim of retaliation
in violation of Title IX and a claim for breach of contract.
Plaintiff's proposed retaliation claim alleges that the
defendants took adverse action against her after her parents
wrote a letter to the college's athletic director complaining
about the treatment she received from her coaches. The
plaintiff's proposed breach of contract claim alleges that the
defendants breached a contract with plaintiff that was set out in
certain student handbooks, which prohibited discrimination in
college programs. In a Memorandum Order dated June 2, 2004, Judge
Bobrick denied plaintiff leave to add these claims to her
complaint, and dismissed her complaint sua sponte. Howell v.
North Central College, 320 F.Supp.2d 717 (N.D.Ill. 2004).
Assessing the plaintiff's proposed retaliation claim, the court
acknowledged that Title IX protects persons from retaliation for
complaining about discrimination, but explained that the
"`complaint must involve discrimination that is prohibited by
[the statute].'" 320 F.Supp.2d at 720 (quoting Hamner v. St.
Vincent Hosp. and Health Care Center, 224 F.3d 701, 707 (7th
Cir. 2000). The court examined plaintiff's allegations regarding
the nature of the discrimination she opposed, and concluded that her complaint
involved discrimination, or harassment, based on her sexual
orientation as a heterosexual. After reviewing analogous Title
VII case law, the court determined that Title IX did not
proscribe discrimination or harassment based on one's sexual
preference. 320 F.Supp.2d at 721-24. Accordingly, Judge Bobrick
denied plaintiff's motion to amend her complaint as futile,
finding her proposed retaliation claim would not survive a motion
to dismiss. 320 F.Supp.2d at 724.
Plaintiff's motion to add a retaliation claim necessitated an
examination by Judge Bobrick of her original Title IX claim. That
examination revealed that plaintiff's original Title IX claim did
not state a cause of action because it was based on sexual
orientation. Satisfied that the parties had already sufficiently
argued the issue of the nature of the plaintiff's original Title
IX claim in connection with plaintiff's proposed retaliation
claim, the court dismissed the original claim sua sponte.
320 F.Supp.2d at 724-25. With the basis for federal jurisdiction
gone, the court denied plaintiff leave to add her breach of
contract claim and relinquished jurisdiction over her state law
claims under 28 U.S.C. § 1367(c)(3). 320 F.Supp.2d at 725-26.
On June 24, 2004, this matter was reassigned to this Court
pursuant to Local Rule 40.1(f), following Judge Bobrick's
retirement from the bench. That same day, plaintiff filed a
"Motion of Plaintiff for this Court to Alter or Amend its Sua
Sponte Decision to Dismiss the Plaintiff's Title IX Retaliation
Claim Without First Granting Plaintiff Leave to Amend Her
Complaint and without Consideration of the Letter Written to
School Administrators Complaining that the Defendants had Sexually Harassed and
Sexually Discriminated Against Plaintiff." ("Plaintiff's
Motion"). The motion included the letter to which the prolix
title referred, and asked the court to vacate Judge Bobrick's
ruling and to grant her leave to amend her complaint.
Following briefing of this motion, on August 4, 2004, the Court
heard oral argument. During the course of that argument, it
became clear that plaintiff's original Title IX claim was, as
Judge Bobrick had concluded, exclusively concerned with
discrimination and harassment motivated by plaintiff's sexual
orientation. Admitting this, and conceding that sexual
orientation is not protected under Title IX, plaintiff's counsel
voluntarily dismissed the original Title IX claim Count I of
the complaint with prejudice. With the sua sponte dismissal
of the plaintiff's original Title IX claim no longer an issue,
the question becomes whether Judge Bobrick properly denied
plaintiff leave to add a retaliation claim and a breach of
contract claim. After reviewing that decision and considering all
of plaintiff's arguments and additional case citations, this
Court agrees with Judge Bobrick and once again denies plaintiff's
motion to amend her complaint because her retaliation claim does
not state a cause of action and would be futile.
A. STANDARD FOR AMENDING A COMPLAINT
Plaintiff submits that, in considering her motion to amend her
complaint, it was improper for the court to question whether her
allegations demonstrated that her complaint involved discrimination that Title IX prohibited. (Plaintiff's
Motion, at 3). Operating under a misapprehension as to the law
applicable to a motion under Rule 15(a), the plaintiff argues
that the court ought to have confined its ruling to whether the
defendant would suffer undue prejudice if she were allowed to
amend her complaint. (Plaintiff's Motion, at 3). As the court
indicated in its Memorandum Order, Fed.R.Civ.P. 15(a) instructs
that leave to amend a complaint be freely given when justice so
requires, but does not mandate that leave be granted in every
case. 320 F.Supp.2d at 719-20. While undue prejudice is one
factor the court must consider in evaluating a motion to amend,
the court must also consider whether the proposed amendment would
be futile; that is, whether the amendment would withstand a
motion to dismiss. Park, 297 F.2 at 612-13; Vargas-Harrison v.
Racine Unified School Dist., 272 F.3d 964, 974 (7th Cir.
B. THE PROPOSED RETALIATION CLAIM IS FUTILE
In his evaluation of plaintiff's proposed retaliation claim
under Title IX, Judge Bobrick relied fairly extensively on Hamm
v. Weyauwega Milk Products, Inc., 332 F.3d 1058 (7th Cir.
2003) and Hamner v. St. Vincent Hosp. and Health Care Center,
224 F.3d 701 (7th Cir. 2000). The court acknowledged that,
under Title IX, an individual is protected not only from
discrimination on the basis of sex, but from retaliation for
complaining about the type of discrimination the statute
prohibits. 320 F.Supp.2d at 720. The court allowed that a
retaliation claim might be valid even if the discrimination or
harassment at issue were not sufficiently severe to implicate
Title IX's protections, but emphasized that "`the complaint must involve discrimination that is prohibited by [the
statute].'" 320 F.Supp.2d at 720 (quoting Hamner,
224 F.3d at 707). When Judge Bobrick examined plaintiff's allegations, it
became evident that, as the plaintiff now concedes, the complaint
involved discrimination that Title IX did not proscribe:
discrimination or harassment based on sexual orientation.
320 F.Supp.2d at 723-25. In both Hamm and Hamner, the Seventh
Circuit held that a plaintiff could not ...