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U.S. Bank v. Board of Education of East Maine School District No. 63

May 16, 2007


The opinion of the court was delivered by: Samuel Der-yeghiayan, District Judge


This matter is before the court on Defendant Board of Education of East Maine School District No. 63's ("Board"), Defendant Scott Herrmann's ("Herrmann"), and Defendant Kathleen Williams' ("Williams") (collectively referred to as "Defendants") partial motion to dismiss. For the reasons stated below, we grant in part and deny in part the partial motion to dismiss.


Plaintiff alleges that from 2002 to 2003, a minor identified as "Jane Doe" ("Minor") was enrolled in a math class that was taught by Defendant Donald N. Blitz ("Blitz") at Gemini Jr. High School ("School"). According to Plaintiff, Blitz asked the Minor to stay after class one day to discuss her grade and Blitz then sexually assaulted the Minor after class. Blitz allegedly threatened to give the Minor a poor grade in the class if she did not continue to acquiesce to future sexual assaults. Plaintiff claims that between November 2002 and November 2003, Blitz sexually assaulted the Minor on several other occasions. According to Plaintiff, Blitz would close the door to his classroom during the assaults. Plaintiff claims that Herrmann, the principal of the School, Williams, the district superintendent, and the Board were aware of the danger that Blitz posed to the students. According to Plaintiff, there had been prior investigations concerning allegations that Blitz had inappropriately touched other female students. Plaintiff also claims that Defendants failed to properly supervise Blitz.

Plaintiff brought the instant action as the representative of the estate of the Minor and includes in its second amended complaint a negligent retention claim brought against the Board, Herrmann, and Williams (Count I), a negligent supervision claim brought against the Board, Herrmann and Williams (Count II), a negligent infliction of emotional distress claim brought against the Board, Herrmann, and Williams (Count III), a willful and wanton misconduct claim brought against the Board, Herrmann, and Williams (Count IV), an assault and battery claim brought against Blitz (Count V), a claim brought against Blitz, Herrmann, and Williams alleging a violation 42 U.S.C. § 1983 ("Section 1983") based upon violation of the Minor's right to be free from sexual abuse (Count VI), and a claim brought against the Board alleging sex discrimination in violation of Title IX of the Education Amendments of 1972 ("Title IX"), 20 U.S.C. § 1681 et seq. (Count VII). Defendants move to dismiss Counts I, II, III, IV, and VI.


In ruling on a motion to dismiss, brought pursuant to Federal Rule of Civil Procedure 12(b)(6), the court must draw all reasonable inferences that favor the plaintiff, construe the allegations of the complaint in the light most favorable to the plaintiff, and accept as true all well-pleaded facts and allegations in the complaint. Thompson v. Ill. Dep't of Prof'l Regulation, 300 F.3d 750, 753 (7th Cir. 2002); Perkins v. Silverstein, 939 F.2d 463, 466 (7th Cir. 1991). The allegations of a complaint should not be dismissed for a failure to state a claim "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957). Nonetheless, in order to withstand a motion to dismiss, a complaint must allege the "operative facts" upon which each claim is based. Kyle v. Morton High Sch., 144 F.3d 448, 454-55 (7th Cir. 1998); Lucien v. Preiner, 967 F.2d 1166, 1168 (7th Cir. 1992). Under current notice pleading standard in federal courts, a plaintiff need not "plead facts that, if true, establish each element of a 'cause of action. . . .'" See Sanjuan v. Am. Bd. of Psychiatry and Neurology, Inc., 40 F.3d 247, 251 (7th Cir. 1994)(stating that a "[a]t this stage the plaintiff receives the benefit of imagination, so long as the hypotheses are consistent with the complaint" and that "[m]atching facts against legal elements comes later"). The plaintiff need not allege all of the facts involved in the claim and can plead conclusions. Higgs v. Carver, 286 F.3d 437, 439 (7th Cir. 2002); Kyle, 144 F.3d at 455. However, any conclusions pled must "provide the defendant with at least minimal notice of the claim," id., and the plaintiff cannot satisfy federal pleading requirements merely "by attaching bare legal conclusions to narrated facts which fail to outline the bases of [his] claims." Perkins, 939 F.2d at 466-67. The Seventh Circuit has explained that "[o]ne pleads a 'claim for relief' by briefly describing the events." Sanjuan, 40 F.3d at 251; Nance v. Vieregge, 147 F.3d 589, 590 (7th Cir. 1998)(stating that "[p]laintiffs need not plead facts or legal theories; it is enough to set out a claim for relief").


I. Negligent Retention Claim (Count I)

Defendants argue that the Board cannot be held liable for negligent retention because the Board has immunity and that Herrmann and Williams cannot be held liable for negligent retention because they lacked the authority to discharge Blitz.

A. Negligent Retention by Board

Defendants argue that the Board is immune to a negligent retention claim under Section 2-201 of the Local Governmental and Governmental Employees Tort Immunity Act ("Section 2-201"), 745 ILCS 10/2-201. Section 2-201 provides that

"[e]xcept as otherwise provided by Statute, a public employee serving in a position involving the determination of policy or the exercise of discretion is not liable for an injury resulting from his act or omission in determining policy when acting in the exercise of such discretion even though abused." 745 ILCS 10/2-201. A public school board is a local public entity and the term "employee" in Section 2-201 "includes a present or former officer, member of a board, commission or committee, agent, volunteer, servant or employee, whether or not compensated, but does not include an independent contractor." 745 ILCS 10/1-206; 745 ILCS 10/1-202. Pursuant to Section 2-201, "an employee may be granted immunity if he holds either a position involving the determination of policy or a position involving the exercise of discretion" and "immunity will not attach unless the plaintiff's injury results from an act performed or omitted by the employee in determining policy and in exercising discretion." Harinek v. 161 N. Clark Street Ltd. P'ship, 692 N.E.2d 1177, 1181 (Ill. 1998)(emphasis in original)(citing 745 ILCS 10/2-201)(stating that "[t]he employee's position thus may be one which involves either determining policy or exercising discretion, but . . . the act or omission must be both a determination of policy and an exercise of discretion").

In the instant action, Defendants argue that, based upon the allegations in the second amended complaint, it is clear that the Board had no personal involvement in the alleged sexual assaults. Defendants argue that to the extent that the Board is referenced in the second amended complaint, the decision by the Board concerning Blitz's employment status involved only the Board's discretionary policy-making authority. Plaintiff responds that "[u]nder the Illinois Abused and Neglgected Child Reporting Act, school personnel are divested of any discretion and must notify the Department of Family and Child Services of suspected abuse." (Ans. 3). According to Plaintiff, the Board's decision concerning Blitz was not discretionary since the Board had "no discretion but to notify the authorities of suspected child abuse" and the Board breached its "duty to contact the authorities." (Ans. Mem. 3-4). However, the negligent retention claim is not based upon a failure by the Board to report Blitz to the authorities, nor is it premised upon the Board's duty to notify authorities of child abuse. There are in fact no allegations in the second amended complaint that indicate that the Board failed to notify authorities of child abuse. Rather, Plaintiff asserts that the Board is liable since it "continued to employ" Blitz despite alleged knowledge of allegations of misconduct by Blitz. (SA Compl. CI Par. 20). A negligent ...

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