The opinion of the court was delivered by: Harold A. Baker United States District Judge
Plaintiff Andrea Nead ("Nead") is a Nurse PRN. She brings this complaint against her employer, the Board of Trustees of Eastern Illinois University ("EIU"), and her supervisor, Director of Health Services Lynette Drake ("Drake"). Nead claims the defendants violated her constitutional rights to freedom of speech, freedom of religion, and equal protection of the law.*fn1 She also claims the defendants violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.; the Church Amendment, 42 U.S.C. § 300a-7(b)-(d); and the Illinois Health Care Right of Conscience Act, 745 Ill. Comp. Stat. 70/1 et seq.
The defendants have filed a motion to dismiss all six counts of the complaint. For the following reasons, the motion to dismiss is granted in part and denied in part.
In August 2000, EIU hired Nead to work in its Health Services Department. Since that time, Nead has worked in all nursing areas of the Health Services Department.
In December 2004, Nead interviewed for a promotion to Staff Nurse II within the Health Services Department, for which there were two openings. Nead claims she was highly qualified for the position based on her education, experience, test scores and recommendations from her co-workers and supervisors. The Director of Nursing conducted the interview and told Nead that, because of her familiarity with Nead's nursing skills, she would dispense with most of the usual interview questions and confine herself to three questions: (1) what were Nead's strengths/weaknesses; (2) how had Nead used her nursing skills in the community; and (3) whether she would be willing to dispense emergency contraception ("EC"), also known as the morning-after pill.
In response to the third question, Nead replied that she opposed EC because she considered it a form of abortion, a practice which, according to her religious beliefs, Nead may not participate in. Nead explained her understanding of how EC works, her belief that life begins at conception, and her opposition to the use of EC. The interviewer told Nead that another nurse who was interviewed for the Staff Nurse II position did not have any objection to dispensing EC.*fn2 A month later, Nead was informed that she was not hired for either of the Staff Nurse II positions. She believes she was passed over for the promotion because she refused to dispense EC.*fn3
In ruling on a motion to dismiss, a court must accept the plaintiff's well-pled allegations as true and draw reasonable inferences in the plaintiff's favor. Perkins v. Silverstein, 939 F.2d 463, 466 (7th Cir. 1991). Dismissal should be granted only if it appears that the plaintiff cannot prove a set of facts supporting her claim that would entitle her to relief. Conley v. Gibson, 355 U.S. 41, 45-46 (1957). Put another way, "[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." Swierkiewicz v. Sorema N. A., 534 U.S. 506, 514 (2002) (quoting Hishon v. King & Spalding, 467 U.S. 69, 73 (1984) (emphasis added) .
I. Constitutional Violations
The defendants argue that Counts I, II and III must be dismissed due to the sovereign immunity provided by the Eleventh Amendment, and neither EIU nor Drake is a "person" subject to suit under Section 1983. Although Nead argues against dismissal of the individual capacity claim against Drake, she concedes that the constitutional claims against EIU and Drake in her official capacity must be dismissed. Accordingly, those claims are dismissed.
Nead alleges that she was denied the promotion to Staff Nurse II because of her speech and religious beliefs. Drake argues that the allegations do not state a claim for which relief may be granted.
In Horwitz v. Board of Educ. of Avoca Sch. Dist. No. 37, 260 F.3d 602, 618 (7th Cir. 2001), the Court of Appeals affirmed the Rule 12(b)(6) dismissal of a First Amendment retaliation claim against a defendant in her individual capacity, according to the following test.
In order for [the plaintiff] to establish a § 1983 claim based on the First Amendment, she must demonstrate that: (1) her conduct was constitutionally protected and (2) her conduct was a substantial or motivating factor in the defendants' challenged actions. See Thomsen v. Romeis, 198 F.3d 1022, 1027 (7th Cir. 2000). To determine whether [the plaintiff's] speech was constitutionally protected, we need to ask whether her speech addressed a matter of public concern, and if so, then we must consider whether [the plaintiff's] interest in speaking outweighs the interest of the state in efficiently providing services. See Kokkinis v. Ivkovich, 185 F.3d 840, 843-44 (7th Cir. 1999). To determine whether [her] speech was a matter of public ...