United States District Court, C.D. Illinois, Urbana Division
December 6, 2005.
VIRGINIA LYNN CARTER, Plaintiff,
BOARD OF EDUCATION CHAMPAIGN COMMUNITY UNITED SCHOOL DISTRICT #4, Defendant.
The opinion of the court was delivered by: DAVID BERNTHAL, Magistrate Judge
In July 2005, Plaintiff, Virginia Carter, filed a complaint in
the Circuit Court of the Sixth Judicial Circuit, Champaign
County, Illinois, against Defendant, the Board of Education of
Champaign Community Unit School District No. 4. In July 2005,
Defendant removed the case to federal court by filing a Notice of
Removal (#1). Federal jurisdiction is based on federal question
pursuant to 28 U.S.C. § 1331.
In August 2005, Defendant filed a Motion To Dismiss Counts III,
VI, and VII (#3). After reviewing the parties' pleadings and
memoranda, Defendant's Motion To Dismiss Counts III, VI, and VII
(#3) is GRANTED in part and DENIED in part.
The following background is taken from the complaint. At
relevant times, Dorland Norris was Deputy Superintendent of the
District and Ecomet Burley was Assistant Superintendent for
Achievement and Pupil Services. Plaintiff worked for the District
as principal at Booker T. Washington School from 2000 until
mid-2004. A written contract between Plaintiff and Defendant
established the terms of her employment.
From 2002-2006, Plaintiff did not receive a salary increase,
nor was she given a formal remediation plan. In May 2003, Ms.
Norris recommended that Plaintiff be retained without a
remediation plan. Plaintiff did not receive a raise at that time,
nor was she notified of any areas of performance that needed to
be improved in order to receive a raise. In 2003, Norris informed
Plaintiff that some complaints had been received from parents and
that Plaintiff should draft her own remediation plan. In September 2003, Norris sent Plaintiff a
notice stating that a remediation would be developed. Plaintiff
never received a formal plan from Defendant, and Defendant did
not respond to the remediation plan that Plaintiff had drafted on
her own. Plaintiff complied with the provisions of her own
informal remediation plan.
In October 2003, Ecomet Burley, the assistant superintendent,
visited Booker T. Washington School. During that visit, he
observed an interaction between a school secretary and a
substitute secretary, Deb Bone, and also observed some items in
the school that presented an unsightly appearance. In November
2003, Plaintiff met with Burley and others and Burley told her to
fire Bone and to clean up the hallway and front entrance.
Plaintiff fired Bone, and told Bone that Burley had instructed
Plaintiff to do so. She also informed other Booker T. Washington
staff that Burley was not pleased with the appearance of the
In February 2004, Burley sent Plaintiff a memorandum regarding
the November 2003 meeting and Plaintiff's handling of the issues
raised at that meeting. The memorandum states, in part, as
follows: "Ms. Carter, your handling of confidential
school-related information by telling your staff and Ms. Bone
that I was the source of this information was inappropriate and
showed poor judgment on your part. . . . Your indiscretion in
this situation has caused irreparable harm." (Complaint, Ex. E.)
In March 2004, Plaintiff met with Burley and outlined
specifically how Plaintiff had complied with the informal
remediation plan. On April 19, 2004, Burley told Plaintiff that
Plaintiff would be reassigned from Booker T. Washington School
and that he was not sure there was a place for Plaintiff with the
District. Later in the day on April 19, 2004, Carol Stack, Deputy
Superintendent for the District, informed Plaintiff that if
Plaintiff did not provide a letter of resignation, a board
meeting would be called immediately. Plaintiff submitted a letter
asking for reassignment to another school in the District. On June 1, 2004, Plaintiff met with Burley for a final
evaluation. Burley's summary evaluation stated in part that "the
recommendation to reassign Ms. Carter to another position in the
district has been made and accepted by Superintendent and the
Board of Education." (Complaint, Ex. G.) Plaintiff was ultimately
told that no position was available for her in the District. On
June 4, 2004, Plaintiff informed Defendant that she had accepted
an administrative position at another school.
As a result of Defendant's actions, Plaintiff has lost wages,
retirement income, and raises to which she was entitled. She has
also suffered damage to her reputation and incurred relocation
Plaintiff's seven-count complaint alleges breach of contract,
breach of contract pursuant to state statute
(105 ILCS 5/10-23.8(B)), constructive discharge, violation of procedural
due process/occupational liberty pursuant to 42 U.S.C. § 1983
(hereinafter "Section 1983"), violation of substantive due
process pursuant to Section 1983, violation of procedural due
process under the Illinois Constitution, and violation of
substantive due process under the Illinois Constitution.
The purpose of a motion to dismiss is to test the sufficiency
of the complaint, not to decide the merits of the case. Miller
v. Reebie Storage and Moving Co., Inc., No. 93 C 3986, 1993 WL
414689, *1 (N.D. Ill. Oct. 15, 1993). When considering a motion
to dismiss, the Court must accept as true all well-pleaded
factual allegations in the claim and draw all reasonable
inferences in the light most favorable to the nonmoving party.
Gutierrez v. Peters, 111 F.3d 1364, 1368-69 (7th Cir. 1997).
The Court should dismiss the case only if the nonmoving party can
prove no set of facts consistent with the allegations of the
complaint that would entitle him to relief. Turner/Ozanne v.
Hyman/Power, 111 F.3d 1312, 1319-20 (7th Cir. 1997). III. Analysis
Defendant argues that the Court should dismiss Counts III, VI,
and VII because (1) no such cause of action as "constructive
discharge" exists under Illinois law (Count III); and (2) the
Illinois Constitution does not provide a private right of action
for violations of procedural and substantive due process (Counts
VI and VII).
A. Constructive Discharge (Count III)
Defendant first argues that Illinois law does not recognize the
claim of constructive discharge alleged in Count III. In Count
III, Plaintiff alleges that, assuming it is found that Plaintiff
resigned, she was forced to resign; Burley and Stack's statements
to Plaintiff that Plaintiff would be fired if she did not resign
made Plaintiff's workplace unbearable and intolerable; Plaintiff
reasonably assumed that if she did not resign, her employment
would be terminated; Defendant breached its contract with
Plaintiff by making her workplace unbearable and intolerable; and
Plaintiff performed all the conditions of her contract.
In support of its argument, Defendant relies on Washburn v.
IBP, Inc., in which the plaintiff alleged retaliatory discharge
based on constructive discharge; he claimed the constructive
discharge occurred because he was forced to leave the plant where
he was employed to seek medical attention that his employer
failed to provide. Washburn v. IBP, Inc., 910 F.2d 372 (7th
Cir. 1990). When considering this retaliatory discharge claim,
the Seventh Circuit stated, "Illinois does not recognize a cause
of action for constructive discharge." Id. at 374 n. 2.
Defendant acknowledges that Illinois law recognizes the
doctrine of constructive discharge in limited circumstances.
For example, in Hinthorn v. Roland's of Bloomington, Inc.,
519 N.E.2d 909, 912 (Ill.App.Ct. 1988), the court distinguished
between constructive discharge based on a forced resignation and
constructive discharge based on harassment, and concluded that
Illinois courts had rejected application of the constructive
discharge doctrine where the purported discharge was based on the
existence of harassment. Defendant also acknowledges that
constructive discharge may be an element of other employment
discrimination claims. See, e.g., Burnell v. Gen. Tel. Co. of
Ill., Inc., 536 N.E.2d 1387, 1389 (Ill.App.Ct. 1987) (applying the concept of constructive discharge to a claim under the Age
Discrimination in Employment Act of 1967 (29 U.S.C. § 621 et
Plaintiff responds that Defendant has viewed the claim in Count
III too narrowly. She contends that courts have recognized a
claim for constructive discharge under federal law when employers
cause employees to resign by creating intolerable working
conditions. In support, Plaintiff cites Levenstein v. Salarsky,
414 F.3d 767, 774 (7th Cir. 1991), and contends that it stands
for the proposition that a plaintiff could bring a constructive
discharge claim as a constitutional claim when that claim is
based on a violation of due process rights. A review of
Levenstein indicates that the claim at issue was a due process
claim and the Seventh Circuit applied the doctrine of
constructive discharge to that claim. Levenstein does not,
however, hold or state that "constructive discharge" constitutes
an independent basis for liability.
In Pennsylvania State Police v. Suders, the United States
Supreme Court describes the constructive discharge doctrine as
follows: "Under the constructive discharge doctrine, an
employee's reasonable decision to resign because of unendurable
working conditions is assimilated to a formal discharge for
remedial purposes." Pa. State Police v. Suders, 542 U.S. 129,
___, 124 S. Ct. 2342, 2351-52 (2004). Thus, the Supreme Court
characterized the constructive discharge doctrine as a mechanism
that enables a plaintiff to state a retaliatory discharge claim
when an employer does not directly discharge the employee. In
Suders, the underlying basis for liability was the employer's
violation of Title VII; the Supreme Court subsequently applied
the constructive discharge doctrine to that Title VII claim.
We do not think that a claim of "constructive discharge" stands
alone as a viable basis for liability, any more than a claim of
"termination of employment" would stand alone. The mere
allegation of loss of employment, whether based on constructive
discharge or direct termination of employment, is not enough to
state a claim; a plaintiff must also allege some grounds for
holding the employer liable for that loss. Thus, "the doctrine is
ancillary to an underlying claim in which an express discharge
otherwise would be actionable . . . it joins the actionable claim
and operates as a defense against an employer's contention that the
employee quit voluntarily." Strozinsky v. Sch. Dist. of Brown
Deer, 614 N.W.2d 443, 462 (Wis. 2000).
In defense of her constructive discharge claim, Plaintiff
states, "Plaintiff's due process rights under the federal
constitution were violated, depriving her of a protected property
interest" (Plaintiff's Response to Defendant's Motion To Dismiss,
#9, p. 2), and "Plaintiff was either terminated by Defendant or
forced to resign in violation of her rights under § 1983" (#9, p.
3). Thus, it appears that, in Count III, she is attempting to
allege that Defendant violated her right to due process. As an
initial matter, it is well-recognized that Section 1983 does not
create any substantive rights; rather, it is only a vehicle by
which violations of the United States Constitution and selected
federal statutes may be redressed. Therefore, when pleading a
claim pursuant to Section 1983, the plaintiff must allege the
specific right at issue. See Graham v. Connor, 490 U.S. 386,
It is also well-established that a plaintiff cannot amend her
complaint through arguments presented in her legal memoranda.
Harrell v. United States, 13 F.3d 232, 236 (7th Cir. 1993).
Plaintiff indicates in her memorandum that she is attempting to
state a due process claim based on constructive discharge rather
than termination. If so, it is not clear from the allegations of
the complaint, particularly in light of her clear statement of
due process claims in Counts IV and VI. Accordingly, the Court
grants the motion to dismiss and allows Plaintiff to amend her
claim in Count III.
B. Procedural and Substantive Due Process Claims (Counts VI and
Defendant next argues that Plaintiff has no private right of
action for procedural and substantive due process claims under
Article I, Section 2 of the Illinois Constitution. See
Faulkner-King v. Wicks, 590 N.E.2d 511
, 516 (Ill.App.Ct.
1992). In Faulkner-King, the court dismissed a due process
claim brought pursuant to Article I, Section 2 of the Illinois
Constitution, stating that the Illinois Human Rights Act
(775 ILCS 5/1-101 et seq.) (hereinafter "IHRA") is the exclusive
remedy for employment discrimination claims. Id. Plaintiff distinguishes Faulkner-King because, in that case, the due
process claim was based on sex discrimination in employment, an
area expressly preempted by the IHRA. (See 775 ILCS 5/2-102.)
Here, the due process claims are not based in any way on
discrimination. Moreover, the preemptive reach of the IHRA is
limited to those grounds identified in the statute as civil
rights violations. (See 775 ILCS 5/1-103(D).) Denial of due
process is not one of those enumerated grounds.
Plaintiff responds that Illinois law recognizes a private right
of action under Article I, Section 2. In support, she cites
several cases. See Garrido v. Cook County Sheriff's Merit Bd.,
811 N.E.2d 312 (Ill.App.Ct. 2004); Prato v. Vallas,
771 N.E.2d 1053 (Ill.App.Ct. 2002); Van Kast v. Bd. of Educ. of
the City of Chi., Ill., No. 87 C 2582, 1988 WL 2791 (N.D. Ill.
Jan. 12, 1988) (unreported). In Garrido, a deputy sheriff
alleged that the county sheriff's merit board violated her right
to substantive due process when it terminated her employment
based on her violation of the zero-tolerance drug-free workplace
policy. Garrido, 811 N.E.2d at 319. In Prato, a public school
principal alleged that the school board violated her right to due
process under the federal and state constitutions when it
discharged her for violations of an employment contract. Prato,
771 N.E.2d at 1064. In Van Kast, a high school principal sued
the school board for suspending him without pay, claiming that
his presuspension hearing did not accord him due process, in
violation of federal and state constitutions and state statute.
Van Kast, 1988 WL 2791, at *1.
As a general rule, unless a constitutional provision has
self-executing language, it requires implementing language in
order for an individual to be able to bring suit to enforce the
right conferred by the particular provision. See, e.g., Baker v.
Miller, 636 N.E.2d 551, 553 (Ill. 1994). For example, Article I,
Section 17 of the Illinois Constitution, which addresses
employment discrimination, includes the following self-executing
language: "These rights are enforceable without action by the
General Assembly. . . ." ILL. CONST., Art. I, § 17. This clause
"makes clear that the provision is self-executing; no
implementing legislation is necessary to sustain a cause of
action for section 17 discrimination." Baker,
636 N.E.2d at 553. Thus, suits can be brought directly under Section 17 because that Section
provides a private right of action in the form of a
self-executing provision. In contrast, in Teverbaugh v. Moore,
the court, addressing Article I, Section 18, noted the absence of
language providing a right of action for damages. Teverbaugh v.
Moore, 724 N.E.2d 225, 229 (Ill.App.Ct. 2000). In the absence
of implementing legislation, the court concluded that Section 18
was not self-executing; therefore, the plaintiff had no private
right of action under Section 18.
Article I, Section 2 of the Illinois Constitution states, "[n]o
person shall be deprived of life, liberty or property without due
process of law nor be denied the equal protection of the laws."
ILL. CONST., Art. I, § 2. It does not contain any self-executing
language. See Jacobson v. Nat'l R.R. Passenger Corp., No. 97 C
6012, 1999 WL 1101299, *11 (N.D. Ill. Nov. 29, 1999) (unreported)
(stating that the Illinois Constitution does not contain an
express remedy for a violation of Article I, Section 2).
In the absence of self-executing language, courts have also
held that constitutional provisions may be self-executing when
they are negative or prohibitory in character (Law v. People ex
rel. Huck, 87 Ill. 395 (Ill. 1877)), when they limit the power
of the government or prohibit the performance of any act by an
officer or person (Washingtonian Home of Chi. v. City of Chi.,
41 N.E. 893 (Ill. 1895)), or when they are merely declaratory of
the common law (C.J.S., Constitutional Law § 48).
The language of Article I, Section 2 is negative or prohibitory
in nature, therefore, it is self-executing. See Methodist Med.
Ctr. of Ill. v. Taylor, 489 N.E.2d 351, 354 (Ill.App.Ct. 1986)
(stating that under both the federal and Illinois constitutions,
the due process clauses "stand as a prohibition against
governmental action"). Accordingly, the Court denies Defendant's
motion to dismiss Plaintiff's state constitutional claims. IV. Summary
For the reasons set forth above, Defendant's Motion To Dismiss
Counts III, VI, and VII (#3) is GRANTED as to Count III and
DENIED as to Counts VI and VII. Because it is conceivable that
Plaintiff can amend her complaint to state a claim in Count III,
the dismissal is without prejudice and Plaintiff is granted leave
to file an amended complaint within fourteen (14) days of this
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