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James Askew, Anthony Artley, Sylvia v. Waukegan Public School District 60

February 10, 2011

JAMES ASKEW, ANTHONY ARTLEY, SYLVIA ENGLAND, TIMOTHY GAUSE, GWENDOLYN KENNEDY, ALPHONSO ROGERS, WILMA )TALLY, AND DEWAYNE WILLIAMS, PLAINTIFFS,
v.
WAUKEGAN PUBLIC SCHOOL DISTRICT 60, DEFENDANT.



The opinion of the court was delivered by: Judge Feinerman

MEMORANDUM OPINION AND ORDER

Plaintiffs are eight current or former employees of Defendant Waukegan Public School District 60. Their original complaint stated various individual claims for race, sex, and age discrimination, and retaliation, under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq., and for breach of contract. To summarize,

* Plaintiff James Askew alleged that he suffered age and race discrimination when the District told him he was too old to serve as Physical Education Department Chair, pressured him to retire, and demoted him from Department Chair to In-School Coordinator.

* Plaintiff Timothy Gause alleged that he suffered race discrimination when the District did not promote him to House Principal and demoted him to Classroom Instructor.

* Plaintiff Gwendolyn Kennedy alleged that she suffered race discrimination when the District falsely accused her of theft, suspended her, and recommended that she be discharged, even though an investigation revealed no evidence against her.

* Plaintiffs Anthony Artley and DeWayne Williams alleged that they suffered race discrimination when the District falsely accused them of theft, had them arrested and indicted, suspended and discharged them from employment, and failed to recall them once they was cleared of all charges.

* Plaintiff Wilma Tally alleged that she suffered race and sex discrimination when the District informed her that her position was being eliminated, denied her the opportunity to apply for other positions, and demoted her to School Security Officer.

* Plaintiff Alphonso Rogers alleged that he suffered race discrimination when the District suspended him from February 2008 through June 2008 based on allegations of wrongdoing by his subordinates (Artley and Williams); changed certain terms of his employment by taking away his office, his car, and certain work responsibilities; issued him a letter of reprimand; denied him various promotions; and discharged him. Rogers also brought a contract claim based on the District's alleged failure to pay him for accrued sick days.

* Plaintiff Sylvia England alleged that she suffered race, sex, and age discrimination when the District demoted her from Associate Principle at one school to a teaching position at another; precluded her from applying for an Associate Principal position; and failed to hire her as Principal of another school. England also alleged that the District retaliated against her for filing of other discrimination charges with the Equal Employment Opportunity Commission ("EEOC"). Finally, England brought a contract claim based on the District's alleged failure to pay her for accrued sick and vacation days and unreimbursed expenses.

The District moved to sever the case into six separate actions pursuant to Fed. R. Civ. P. 21-six, not eight, because the claims brought by Artley, Williams, and Rogers arise from common facts-or, in the alternative, to hold six separate trials pursuant to Fed. R. Civ. P. 42(b). Plaintiffs responded by filing an amended complaint, which supplemented each discrimination count with allegations that the District acted pursuant to a "school wide policy" of discriminating against older, African-American, and/or female employees. To illustrate, Plaintiffs supplemented Askew's claims with these allegations:

Notwithstanding DISTRICT 60's [non-discrimination] policy and its knowledge of ASKEW's age, DISTRICT 60 engaged in a school wide policy of discriminating against employees forty years of age and older . that transcended various position at DISTRICT 60 including the position held by ASKEW Based on the direction of DISTRICT 60, this school wide policy of discrimination was implemented by various administrators of DISTRICT 60 including Dr. Hamlin, William Newby, Executive Director of Campus Relation, Operations, Safety and Security and Superintendent Batista.

Doc. 25 at 3 (¶¶ 13-14). The "school wide policy" allegations do not vary materially from count to count, save for swapping in the appropriate name and protected category(ies). The amended complaint also added malicious prosecution claims on behalf of Artley and Williams.

In the parties' and the court's view, the new school-wide policy allegations mooted the motion to sever and/or bifurcate, but the District has moved to dismiss those allegations as well as certain claims brought by England, Gause, Rogers, Tally, and Williams. The District argues that the school-wide policy allegations-which the District believes are an attempt to state separate "pattern-or-practice" claims-and the individual claims were not referenced in Plaintiffs' EEOC charges, and thus should be dismissed under the "scope of the charge" exhaustion doctrine. See Cheek v. W. & S. Life Ins. Co., 31 F.3d 497, 500 (7th Cir. 1994). The District also contends that Artley's and Williams's malicious prosecution claims are time-barred and that Plaintiffs' request for punitive damages should be stricken.

In their response, Plaintiffs agree that England's retaliation claim should be dismissed and that their request for punitive damages should be stricken, but oppose dismissal in all other respects. Plaintiffs also have moved for leave to file a second amended complaint whose new allegations, they say, undermine the District's "scope of the charge" arguments. The new allegations fall into two categories. The first alleges that each Plaintiff did not discover until after filing an EEOC charge and receiving a right-to-sue letter that the District had a school-wide policy of discrimination. See Second Amended Complaint ("SAC") (Docs. 48-1, 48-2,. 48-3) at 4 (¶ 21), at 8-9 (¶ 21), at 13 (¶ 24), at 17-18 (¶ 24), at 22 (¶ 23), at 28-29 (¶ 24), at 35 (¶ 24), at 39 (¶ 24), at 44 (¶ 24), at 49 (¶ 24), at 56 (¶ 24), at 60 (¶ 24), at 65 (¶ 4). The second set alleges that the EEOC did not engage in any meaningful investigation of Plaintiffs' charges and that Plaintiffs requested right-to-sue letters as a result. See id. at 4 (¶ 18), at 8 (¶ 18), at 12-13 (¶¶ 20-21), at 17 (¶¶ 20-21), at 21-22 (¶¶ 19-20), at 28 (¶¶ 20-21), at 34 (¶¶ 20-21), at 39 (¶¶ 20-21), at 44 (¶¶ ...


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