United States District Court, N.D. Illinois, Eastern Division
August 17, 2004.
DANIELLE HOWELL, Plaintiff,
NORTH CENTRAL COLLEGE, THE TRUSTEES OF NORTH CENTRAL COLLEGE, BY AND THROUGH ITS CHAIRMAN, RICHARD NORENBERG, WALTER JOHNSON, LINDA OLSON, and KAREN SEREMET, Defendants.
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 maintain a retaliation
claim where the conduct opposed was discrimination or harassment
based on sexual orientation. Hamm, 332 F.3d at 1066; Hamner,
224 F.3d at 707. Following these two holdings, Judge Bobrick
denied plaintiff's motion to add a retaliation claim to her
complaint. 320 F.Supp.2d at 724.
The plaintiff continues to maintain that her proposed
retaliation claim states a cause of action that would survive a
motion to dismiss. Plaintiff focuses on that portion of Hamner
in which the court explained that, even if a plaintiff complained
of discrimination or harassment that was not sufficiently severe
to implicate the statute's protection, she could nevertheless
advance a retaliation claim if she had a sincere and reasonable
belief that she was opposing an unlawful practice. (Plaintiff's
Motion, at 2). In so doing, she seems to suggest that she had a
sincere and reasonable belief that the conduct she opposed
discrimination or harassment based on sexual orientation was
actionable under Title IX. In Hamner, however, the court made
it clear that a plaintiff must not only have a subjective belief
that she was opposing unlawful conduct, but that her belief must
be objectively reasonable as well. 224 F.3d at 707. That means
the complaint "cannot be without legal foundation, but must concern the `type of activity that, under
some circumstances, supports a charge of sexual harassment.'"
Id. (quoting Holland v. Jefferson National Life Ins. Co.,
883 F.2d 1307 (7th Cir. 1989)).
Discrimination or harassment based on sexual orientation is not
that type of activity. Hamm, 322 F.3d at 1066; Hamner,
224 F.3d at 707. Discrimination or harassment based on sexual
orientation is, however, the type of activity at issue here. As
plaintiff stated when seeking to file her amended complaint,
"[h]ad she been a homosexual, this case would not exist."
(Plaintiff's Reply to Defendant's Response to Plaintiff's Rule
15(a) Motion, at 4). She conceded at oral argument that her
complaint involved discrimination or harassment based exclusively
on her sexual orientation. As a result, the Court finds that her
belief was not objectively reasonable.
Plaintiff submits that the letter her parents wrote to the
college's athletic director is her proof of both the sincerity
and reasonableness of her belief. (Plaintiff's Motion, at 2).
At oral argument, plaintiff maintained that, had Judge Bobrick
considered this letter under Dey v. Colt Const. & Development
Co., 28 F.3d 1446 (7th Cir. 1994) as well as several other
cases plaintiff has since submitted for this Court's perusal he
would have been constrained to find she had a valid retaliation
claim under Title IX. In order to assure the plaintiff of every
opportunity to present her best case, the Court will treat the
letter as though it were an attachment to the plaintiff's
proposed amended complaint. See Tierney v. Vahle, 304 F.3d 734,
738-39 (7th Cir. 2002) (court may consider letter attached to
complaint in deciding motion to dismiss without converting motion to one for
summary judgment). Even with that concession, however, and after
consideration of the cases plaintiff cites, the court holds that
plaintiff's proposed Title IX retaliation claim would not survive
a motion to dismiss.
Plaintiff first raised Dey in support of her Title IX
retaliation claim in the briefing on her Rule 15(a) motion.
(Plaintiff's Reply to Defendant's Response to Plaintiff's Rule
15(a) Motion, at 4). As Judge Bobrick noted in his Memorandum
Order, the Dey court held that a plaintiff's Title VII
retaliation claim might survive even if a trial revealed the
instances of gender-based harassment the plaintiff detailed in
her main claim were not sufficiently severe to depict a hostile
work environment. 28 F.3d at 14557-58, cited in Howell,
320 F.Supp.2d at 721 n. 3. Significantly, in Dey, there was no
question that the type of harassment of which the plaintiff
complained was proscribed by Title VII: the female plaintiff
there alleged that her male supervisor subjected her to instances
of sexually-explicit commentary and sexual innuendo.
28 F.3d at 1453. This makes Dey distinguishable from plaintiff's case.
At the Court's request, following oral argument, plaintiff
provided the Court with a list of additional cases she feels
support her retaliation claim. None of these cases explain how
the plaintiff's belief that she was opposing unlawful conduct
might have been objectively reasonable. In nearly all of these
cases, as in Dey, there was no question that the plaintiff was
opposing conduct unlawful under Title VII, be it gender
discrimination; Fine v. Ryan International Airlines,
305 F.3d 746, 750-52 (7th Cir. 2002) (female pilot's underlying Title VII discrimination claim alleged disparate
treatment compared to male pilots); Holland,
883 F.2d at 1314-16 (female plaintiff alleged she was retaliated against for
complaining about her male supervisor's sexually offensive
remarks and threatening to file EEOC charges); Jennings v.
Tinley Park Community Consolidated School Dist. No. 146,
796 F.2d 962 (7th Cir. 1986) (female plaintiff alleged male employees
were eligible for overtime while female employees were not); or
racial discrimination. Rucker v. Higher Educational Aids Board,
669 F.2d 1179, 1182 (7th Cir. 1982) (plaintiff opposed racial
discrimination against a co-worker). Plaintiff's two remaining
citations McDonnell v. Cisneros, 84 F.3d 256 (7th Cir.
1996) and Berg v. La Crosse Cooler Co., 612 F.2d 1041 (7th Cir.
1980) while failing to lend support to her retaliation claim,
warrant some additional attention.
In McDonnell v. Cisneros, 84 F.3d 256 (7th Cir. 1996),
the plaintiffs a pair of male and female co-workers alleged
harassment stemming from an abusive investigation of charges that
they had engaged in job-related sexual misconduct. According to
the complaint, the process of investigating the anonymous charges
created a hostile environment, in which the pair were subjected
to verbal abuse of a sexual nature. The Seventh Circuit concluded
that a viable claim of sexual harassment might arise from the
verbal harassment alleged, but affirmed the district court's
dismissal of the complaint, holding that "an investigation of
sexual harassment that exceeds the proper limits is [not] itself
a form of actionable sexual harassment." Id. at 260-61. Thus,
the court did not find the underlying claim "completely
groundless," Id. at 259, but instead refused to interpret the
law so as to find an employer, whose investigation of sexual harassment charges might overstep
proper bounds, guilty of sexual harassment. Id. at 261. As
such, when the court assessed the male plaintiff's allegation
that he was retaliated against for his failure to prevent the
female co-worker from filing a sexual harassment charge, it had
no occasion to evaluate the sincerity or reasonableness of his
belief that he was opposing unlawful conduct. Instead, the court
addressed the question of whether the male plaintiff's "passive
opposition" came under the protection of Title VII's retaliation
provision, concluding that it did. Id. at 262. There is nothing
in the holding to suggest that an underlying harassment claim
that is objectively groundless such as the plaintiff's sexual
orientation claim here can provide the basis for a retaliation
claim. Id. at 259 ("It is improper to retaliate for the filing
of a claim of violation of Title VII even if the claim does not
have merit provided it is not completely groundless.").
The plaintiff in Berg claimed her employer discharged her in
retaliation for complaining that her employer's failure to
provide pregnancy benefits constituted gender-based
discrimination. After she was fired, and while her case was
pending in district court, the United States Supreme Court ruled
that a disability benefits plan does not violate Title VII
because of its failure to cover pregnancy related disabilities.
General Electric Co. v. Gilbert, 429 U.S. 125, 97 S.Ct. 401
(1976).*fn1 Based upon that holding, the district court granted the employer's motion for summary judgment. The Seventh
Circuit reversed, holding that plaintiff's belief that she was
opposing an unlawful practice was reasonable at the time, even
where the practice was later determined not be unlawful.
612 F.2d at 1045. In so holding, the court noted that, prior to the
Supreme Court holding, EEOC guidelines and six courts of appeals
all considered withholding of pregnancy benefits to be unlawful
under Title VII. 612 F.2d at 1043-44. Indeed, the plaintiff in
Berg had even gone so far as to acquaint herself with the state
of the law on the issue. 612 F.2d at 1045. In the instant case,
to the contrary and as the plaintiff has conceded, the law is
resoundingly settled that sexual orientation is not protected
under Title VII or, by analogy, Title IX. Hamm,
332 F.3d at 1062; Spearman v. Ford Motor Co., 231 F.3d 1080, 1084 (7th
Cir. 2000); Hamner, 224 F.3d at 707; Ulane v. Eastern
Airlines, 742 F.2d 1081, 1085 (7th Cir. 1984). The Berg
case, then, fails to demonstrate how the plaintiff's belief that
she was opposing unlawful conduct was objectively reasonable.
Finally, we come to the letter, dated May 4, 2001, in which
plaintiff's parents complained of the treatment plaintiff had
received from her coaches. The letter, however, like all of
plaintiff's submissions in this matter, describes discrimination
and harassment motivated by sexual orientation. (Plaintiff's
Motion, at 2-3; Ex. A). Plaintiff's parents accuse one coach of
having a homosexual affair with a player, and speculate as to
whether the coaches favored homosexual players with playing time.
(Plaintiff's Motion; Ex. A, at 1). They complain that plaintiff
was not allowed to wear a ribbon in her hair because "it made her look too feminine." (Id.). They claim that the other
coach talked all the time about lesbian activity, trying to force
her beliefs on the plaintiff. (Id., at 2). There is simply
nothing in this letter and plaintiff has been unable to point
to anything, be it in briefs or at oral argument that suggests
that plaintiff was opposing anything other than her being
harassed because of her sexual orientation. In order to bring a
complaint within the statute's protections, an individual "has to
at least say something to indicate her [gender] is an issue."
Sitar v. Indiana Dept. of Transp., 344 F.3d 720, 727 (7th
Cir. 2003). The plaintiff, or more accurately, her parents,
simply did not do so here. No matter how sincerely she or her
parents might have believed, from a subjective standpoint, that
she was receiving unfair treatment that was actionable under
Title IX, her belief was not objectively reasonable.
Consequently, she cannot maintain a claim of retaliation under
Title IX, and Judge Bobrick properly denied her motion to add
such a charge to her complaint.
C. THE PROPOSED BREACH OF CONTRACT CLAIM BELONGS IN STATE
In her Rule 15(a) motion, plaintiff also seeks leave to add a
state law breach of contract claim to her complaint, based on
certain student handbooks she received from North Central
College. Because plaintiff has voluntarily dismissed her original
Title IX claim and she cannot allege a retaliation claim that
would withstand a motion to dismiss, the basis for invoking
federal jurisdiction is gone. The general rule in such instances,
which Judge Bobrick followed, is that the court should relinquish
jurisdiction over pendent state law claims rather than resolve
them on the merits. 28 U.S.C. § 1367(c); Williams v. Aztar Indiana Gaming Corp., 351 F.3d 294, 300 (7th Cir. 2003).
Accordingly, the court properly denied plaintiff leave to add a
state law breach of contract claim to her complaint, and declined
to exercise jurisdiction over the remaining state law claims.
For the foregoing reasons, the plaintiff's motion to alter or
amend the court's decision of June 2, 2004, is denied.