The opinion of the court was delivered by: Judge Joan H. Lefkow
Plaintiff Jeanette Irby filed suit against the Board of Education of the City of Chicago ("the Board"), alleging discrimination in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621, et seq.*fn1 Before the court is the Board's motion to dismiss the claims stated in Paragraph 29 of Irby's First Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). For the following reasons, the Board's motion [#102] is granted in part and denied in part.
The following facts are alleged in Irby's First Amended Complaint and are presumed true for the purpose of resolving the pending motion. Irby, an African-American female, was employed by the Board as a substitute teacher from 1972-1973 and from 1976-1980. From 1985 to 2005, she was employed by the Board as a technology teacher at Richards Career Academy. In 2005, she was assigned to the School of Technology as a Computer Information Technology Teacher. At that time, Irby was 55 years old.
Between 2005 and 2010, Irby was a full-time employee, received full benefits, maintained the necessary qualifications for her position, and received no disciplinary action. In May 2007, Irby applied for a position as a Teacher Advancement Program ("TAP") Lead Teacher. In January 2008, Irby applied for a position as a Retake NBCT Mentor, and in July 2008 she applied for a position as a Classroom Observer Teacher. In September 2009, she applied to "Pathways to Leadership."*fn2 Irby submitted five additional applications for various leadership programs in 2009 and 2010.*fn3 The Board denied each of Irby's applications for promotions or open positions.
Similarly situated employees, all with less experience or authority and all under the age of 40, were awarded the positions to which Irby had applied. Irby was also subject to a pattern of age discrimination and harassment by employees and agents of the Board, including but not limited to exclusion from TAP planning and organizing meetings; being followed in the halls, including to the washroom and time clock; notification to her students that they could act in any manner they wished without repercussion; failure to investigate stolen or lost equipment from her classroom; and failure to clean and maintain her classroom to the standard of other classrooms. Irby was denied bonuses and stipends to which she was entitled, and received bonuses and stipends that were substantially less than those paid to other employees. This created an intimidating and hostile work environment for Irby, which negatively affected her work performance as well as her physical and mental health.
On October 31, 2008, Irby filed a charge of discrimination with the Illinois Department of Human Rights ("IDHR") and the Equal Employment Opportunity Commission ("EEOC"). The charge alleged, "I began my employment with Respondent in or around January 1985. My current position is Teacher. I applied for the Lead Teacher position with Teacher Advancement Program, and I have not been promoted. I believe that I have been discriminated against because of my age, 58 (DOB: 04/21/1950), in violation of the Age Discrimination in Employment Act of 1967, as amended." Amend. Compl., Ex. A. Irby subsequently applied for and received a leave of absence pursuant to the Family and Medical Leave Act ("FMLA"). She began her leave of absence on January 9, 2009. In light of her continued medical problems, Irby extended her leave of absence through June 12, 2009.*fn4
On April 21, 2010, Irby was terminated from her employment with the Board. She received a notice of right to sue pursuant to her first EEOC charge on May 10, 2010. Irby filed her original complaint in these proceedings, pro se, on June 21, 2010. The court appointed counsel for Irby on September 9, 2010. See Dkt. #18. *fn5 On October 20, 2010, Irby filed a second charge of discrimination with the IDHR and EEOC. The charge states, in relevant part:
During my employment, I was subjected to different terms and conditions of employment, including, but not limited to, being excluded from meetings, difference in assignments and being denied classroom materials. On April 21, 2010, I was constructively discharged.
I believe I have been discriminated against because of my race, Black[,] and sex, female, in violation of Title VII of the Civil Rights Act of 1964, as amended. I further believe I have been discriminated against because of my age, 60, (d.o.b. April 21, 1950), and retaliated against for engaging in protected activity, in violation of the Age Discrimination in Employment Act of 1967, as amended.
Amend. Compl., Ex. B. Irby received her second notice of right to sue on November 9, 2010.
She filed her First Amended Complaint, with the assistance of counsel, on January 4, 2011.
A motion to dismiss under Rule 12(b)(6) challenges a complaint for failure to state a claim upon which relief may be granted. Fed. R. Civ. P. 12(b)(6); Gen. Elec. Capital Corp. v. Lease Resolution Corp., 128 F.3d 1074, 1080 (7th Cir. 1997). In ruling on a motion to dismiss, the court accepts as true all well-pleaded facts in the plaintiff's complaint and draws all reasonable inferences in the plaintiff's favor. Dixon v. Page, 291 F.3d 485, 486 (7th Cir. 2002). In order to survive a Rule 12(b)(6) motion, the complaint must not only provide the defendant with fair notice of the claim's basis, but must also establish that the requested relief is plausible on its face. Ashcroft v. Iqbal, --- U.S. ---, 129 S. Ct. 1937, 1949, 173 L. Ed. 2d 868 (2009); see also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007). The allegations in the complaint must be "enough to raise a ...