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Alexander v. Northeastern Illinois University

June 23, 2008


The opinion of the court was delivered by: Judge Joan B. Gottschall


Plaintiff, Michael S. Alexander ("Alexander") has sued his employer and eleven of its current and former employees alleging violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. ("Title VII"), and various state statutes. Before the court are a motion to dismiss [151] and a motion to strike [154] filed by defendants Northeastern Illinois University ("NEIU"), Debra Cokley ("Cokley"), Gary Bryan, Joseph Kish, David Jonaitis, Margo Smith, Elisabeth Murray (deceased), Murrell Duster, Ralph Zia, Karen Cole, Jeff Brown and Gary Hamburg (collectively, the "Defendants"). For the reasons stated below, the motion to dismiss is granted and the motion to strike is granted in part and denied in part.


Alexander is a carpenter. He has worked for NEIU since 1989. In late 1994, his supervisor, Cokley, attempted to kiss him. He rejected this and subsequent sexual advances. In 1996, Alexander filed an internal grievance with NEIU about Cokley's sexual harassment. In the ensuing proceedings, several managerial employees of NEIU misrepresented facts, falsified records, or colluded in these misrepresentations. In March 1998, Alexander was informed that his grievance was denied because it was baseless.

Alexander alleges that, following these proceedings, Cokley and several current and former NEIU managers retaliated against him for complaining about Cokley's conduct. This retaliation included the denial of his right to appeal the grievance decision, suspension without pay, delay in reimbursement for sick pay, writing baseless unfavorable reports about him, loss of certain privileges as a result of these unfavorable reports, denial of his right to run for and serve on the Civil Service Council, and refusal to accommodate his injuries. On April 30, 2004, Alexander filed a formal charge with the EEOC, alleging continuing discrimination based on retaliation. On January 31, 2005, Alexander received a right to sue letter from the EEOC. He commenced the present suit when he filed his initial complaint on April 29, 2005.

On May 29, 2007, the court issued an order in response to the Defendants' motion to dismiss the first amended complaint. See Alexander v. Northeastern Ill. Univ., No. 05 C 2572, 2007 WL 1576130 (N.D. Ill. May 29, 2007). The court denied the Defendants' motion to dismiss Alexander's retaliation-based Title VII claim against NEIU, granted the motion as to all individual defendants, and also granted a motion to strike the request for punitive damages. Id. at *1. The court granted Alexander leave to file a second amended complaint, stating:

Should Alexander wish to bring related state law claims against either NEIU or the individual defendants, he must file an amended complaint within seven (7) days. In that complaint, he must separate each claim into individual, numbered counts. Each count must be in its own paragraph and supported by factual allegations.

Id. at *5. Alexander timely filed a motion for an extension of time, which the court granted, and subsequently filed his second amended complaint on July 23, 2007. He contemporaneously filed two documents: a "supplemental memorandum of support" and a "supplemental memorandum of law." On August 9, 2007, the court granted Defendants' oral motion to strike these additional documents without prejudice. The Defendants filed their second motion to dismiss, which is presently before the court, along with a second motion to strike.


In his second amended complaint, Alexander adds claims for violations of the following four Illinois statutes and rules: (1) Illinois Human Rights Act ("IHR Act"), 775 Ill. Comp. Stat 5/2-105(B)(4)(e), id. 2-105(B)(5) , and id. 5/6-101; (2) State Universities Civil Service System Rules ("SUCSSR"), Ill. Admin. Code tit. 80 § 250.110; (3) Illinois Whistleblower Act ("IWA"), 740 Ill. Comp. Stat. 174/15; and (4) Illinois Educational Labor Relations Act ("IELR Act"), 115 Ill. Comp. Stat. 5/14. See 2d Am. Compl. ¶ 6(a)-(e).

A. Motion To Dismiss [Document 151]

The Defendants argue that the court should dismiss the state law claims added in Alexander's second amended complaint because the court lacks jurisdiction over the IHR Act and IELR Act claims, the state-law claims are time-barred, the Defendants are immune from suit, and Alexander fails to state a claim under the SUCSSR.

1. Legal Standard: Rule 12(b)(1) and Rule 12(b)(6)

Rule 12(b)(1) provides that a party may assert the defense of lack of subject matter jurisdiction by motion. Fed. R. Civ. P. 12(b)(1). "When reviewing a dismissal for lack of subject matter jurisdiction, . . . a district court must accept as true all well-pleaded factual allegations of the complaint and draw all reasonable inferences in favor of the plaintiff." Long v. Shorebank Dev. Corp., 182 F.3d 548, 554 (7th Cir. 1999). Nevertheless, the burden of proof lies with "the party asserting jurisdiction," namely, the plaintiff. United Phosphorus, Ltd. v. Angus Chem. Co., 322 F.3d 942, 946 (7th Cir. 2003).

Rule 12(b)(6) permits a defendant to assert by motion that the plaintiff's claim for relief fails to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). As with a 12(b)(1) motion, the court must accept as true the allegations of the complaint and draw all reasonable inferences in favor of plaintiff. Pisciotta v. Old Nat'l Bancorp, 499 F.3d 629, 633 (7th Cir. 2007) (internal citation omitted). To survive a Rule 12(b)(6) motion, "the complaint need only contain a 'short and plain statement of the claim showing that the pleader is entitled to relief.'" EEOC v. Concentra Health Servs., Inc., 496 F.3d 773, 776 (7th Cir. 2007) (quoting Fed. R. Civ. P. 8(a)(2)). The allegations must provide the defendant with "fair notice of what the . . . claim is and the grounds upon which it rests." Bell Atl. Corp. v. Twombly, __ U.S. __, 127 S.Ct. 1955, 1964 (2007). The plaintiff need not plead particularized facts, but the factual allegations in the complaint must be sufficient to suggest a right to relief above the speculative level. Id. at 1973-74 & n.14; Erickson v. Pardus, __ U.S. __, 127 S.Ct. 2197, 2200 (2007); Concentra Health Servs., Inc. 496 F.3d at 776 (citing Twombly, 127 S.Ct. at 1965, 1973 n.14).

2. Arguments

a. Jurisdiction Over IHR ...

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