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Lerman v. Turner

November 5, 2010

ZAFRA LERMAN, PH.D., PLAINTIFF,
v.
ALLEN M. TURNER, WARRICK L. CARTER, PH.D., STEVEN KAPELKE, PH.D., ANNICE KELLY, AND COLUMBIA COLLEGE CHICAGO, DEFENDANTS.



The opinion of the court was delivered by: Judge Joan H. Lefkow

OPINION AND ORDER

Plaintiff, Zafra Lerman, Ph.D., filed an eight-count complaint against Columbia College of Chicago ("Columbia"), Allen M. Turner, Warrick L. Carter, Ph.D., Steven Kapelke, Ph.D., and Annice Kelly, alleging, among other things, gender, religious, and national origin discrimination, retaliatory discharge, defamation, breach of contract, and invasion of privacy.*fn1

Count VIII of Lerman's complaint alleges a civil conspiracy among Turner, Carter, Kapelke, and Kelly (collectively, "defendants") to damage Lerman's reputation and frustrate her attempt to appeal her termination from Columbia. Before the court is defendants' motion to dismiss Count VIII pursuant to Federal Rule of Civil Procedure 12(b)(6). For the following reasons, the motion [# 16] is granted.

BACKGROUND*fn2

I. Events Leading Up to Lerman's Termination

Lerman, an Israeli-born Jewish female, was employed as a full-time tenured faculty member at Columbia until her employment was terminated on October 5, 2009. Compl. ¶¶ 11, 13. At all relevant times, she met or exceeded Columbia's employment expectations. Id. ¶ 12. In fact, she had received a very positive performance evaluation on April 29, 2009. Id. ¶ 17.

In May 2009, Lerman attended an event hosted by the Chicago chapter of the American-Arab Anti-Discrimination Committee ("ADC"). Id. ¶ 15. At this event, Columbia was criticized for discriminating against Arab Americans, particularly for terminating a Palestinian faculty member for making an anti-Jewish remark. Id. Lerman reported this to Kapelke, Columbia's Senior Vice President and Provost, and made clear that she also objected to the manner in which the termination had been handled. Id. ¶ 16. Kapelke became angry and told Lerman not to discuss the issue with others. Id.

In July 2009, Kapelke ordered a Columbia Human Resource Department ("HR") investigation into Lerman's competency. Id. ¶ 18. For this investigation, Kapelke identified as a resource only faculty members that he understood to be personally antagonistic to Lerman. Id. Furthermore, Kapelke did not inform Lerman of the investigation. Id. Consequently, when HR interviewed Lerman on August 25, 2009, Lerman incorrectly believed that the interview pertained to an internal complaint she had previously filed against Ken Ilio, a member of her staff, for failure to perform his job duties. Id. ¶ 19.

After this interview, Kapelke ordered a second HR investigation of Lerman instead of addressing her complaint about Ilio. Id. ¶ 20. The second HR investigation concerned grant fund payments that Lerman had authorized to be made to Ilio and others in 2007 after consultation with Kapelke and Michael DeSalle, Columbia's Vice President of Finance. Id. ¶¶ 20-21. Kapelke did not inform Lerman of this investigation either. Id. ¶ 20.

On September 22, 2009, upon realizing that Columbia would not address her complaint against Ilio, and believing that Kapelke had enlisted Carter (Columbia's President), Kelly (Columbia's Vice President and General Counsel), Turner (Chairman of Columbia's Board of Directors), and HR in a scheme to protect Ilio's employment, Lerman notified Columbia that she planned to report Ilio's improper job performance to the relevant government agencies herself. Id. ¶¶ 21-23. Kapelke is said to have encouraged Turner's involvement in the HR investigation even though, as a non-academic, Turner was prohibited from involvement in tenured faculty members' disciplinary matters. Id. ¶ 21.

On October 5, 2009, Lerman filed a Verified Charge of Discrimination and Retaliation against Columbia, and served a copy of the charge on Kelly. Id. ¶ 24. Upon receiving a copy of the charge, Kelly and Kapelke, acting on behalf of Columbia, terminated Lerman's employment, purportedly for misappropriating grant funds. Id. ¶¶ 25, 46. Lerman was stripped of her tenure rights, lost her salary and accumulated benefits, and was ordered not to return on campus. Id. ¶ 25.

II. Lerman's Inquiry into the Termination

Columbia's Statement of Policy on Academic Freedom, Faculty Status, Tenure, and Due Process (the "Policies") secures faculty members' tenure rights. Id. ¶ 26. The Policies prohibited Columbia from terminating Lerman's tenure without providing her an opportunity to appeal the termination to the Elected Representatives of the College ("ERC"). Id. ¶¶ 28-29. According to the Policies, if the decision is appealed, Columbia must provide ERC with evidence through written and oral statements of witnesses to support its decision. Id. ¶ 29. ERC has the authority to determine whether dismissal has been based on prejudicial mistakes of fact or prejudicial deviations from appropriate procedures. Id. ¶ 30. On October 19, 2009, Lerman notified Columbia that she was appealing her termination to ERC and requesting a full inquiry. Id. ¶ 31.

Turner, Carter, Kapelke, and Kelly conspired to use their influence over Columbia to frustrate Lerman's appeal by preventing ERC from accessing vital witnesses and information. Id. ¶¶ 35, 105. Specifically, they prevented ERC from interviewing DeSalle, who would have exculpated Lerman from any claim of wrongdoing, and from confronting Kapelke with his own knowledge that Lerman had acted just as he and DeSalle had advised her to. Id. ¶ 35.The purpose behind this conspiracy was to protect Ilio by preventing Lerman from reporting his ...


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