The opinion of the court was delivered by: Judge George M. Marovich
MEMORANDUM OPINION AND ORDER
After losing their jobs as Campus Monitors at various public schools, plaintiffs Lisa Allison ("Allison"), Patti Mills ("Mills"), Heather Doyle ("Doyle"), Vicki Howell ("Howell"), Michelle Frodyma ("Frodyma") and Loriann Darmstadt ("Darmstadt") filed suit against defendant Board of Education of the Plainfield Community Consolidated School District No. 202 (the "Board") and the Board's members, Stuart Bledsoe ("Bledsoe"), Michael Kelly ("Kelly"), Dave Obruzt ("Obruzt"), Eric Gallt ("Gallt"), Roger Bonuchi ("Bonuchi"), Michelle Smith ("Smith") and Rod Westfall ("Westfall"). Plaintiffs bring suit under § 1983 for violations of the Equal Protection Clause of the Constitution and for violations of their procedural due process rights. Defendants move to dismiss. For the reasons set forth below, the Court grants in part and denies in part defendants' motion.
For purposes of this motion to dismiss, the Court takes as true the allegations in plaintiffs' complaint and also considers the documents attached to and referenced in the complaint. Fed.R.Civ.P. 10(c).
The six plaintiffs, each of whom is female, worked as Campus Monitors at the Plainfield School District for various periods of time until June 2010. In April 2010, the Board informed these plaintiffs that their employment would end as part of a reduction in force, even though each plaintiff performed her job satisfactorily. Plaintiffs allege that the male Campus Monitors were retained and that their sex was the reason for their termination. In Counts I (against the Board) and II (against the individual defendants), plaintiffs allege that defendants violated the Equal Protection Clause by discharging them on the basis of their sex.
Plaintiffs also allege that they were members of the Plainfield Association of Support Staff ("PASS") and parties to a collective bargaining agreement between PASS and the Board. In Counts III (against the Board) and IV (against the individual defendants), plaintiffs allege that they were denied their property interest in their Campus Monitor positions without due process of law.
Defendants move to dismiss.
II. Standard on a motion to dismiss
The Court may dismiss a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure if the plaintiff fails "to state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6). In considering a motion to dismiss, the Court accepts as true all well-pleaded factual allegations and draws all reasonable inferences in the plaintiff's favor. McCullah v. Gadert, 344 F.3d 655, 657 (7th Cir. 2003).
Under the notice-pleading requirements of the Federal Rules of Civil Procedure, a complaint must "give the defendant fair notice of what the . . . claim is and the grounds upon which it rests." Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1964 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). A complaint need not provide detailed factual allegations, but mere conclusions and a "formulaic recitation of the elements of a cause of action" will not suffice. Bell Atlantic, 127 S.Ct. at 1964-1965. A complaint must include enough factual allegations to "raise a right to relief above a speculative level." Twombly, 127 S.Ct. at 1965. "After Bell Atlantic, it is no longer sufficient for a complaint 'to avoid foreclosing possible bases for relief; it must actually suggest that the plaintiff has a right to relief, by providing allegations that raise a right to relief above the speculative level.'" Tamayo v. Blagojevich, 526 F.3d 1074, 1084 (7th Cir. 2008) (quoting Equal Employment Opportunity Comm'n v. Concentra Health Services, Inc., 496 F.3d 773, 776 (7th Cir. 2007)). Allegations that are as consistent with lawful conduct as they are with unlawful conduct are not sufficient; rather, plaintiffs must include allegations that "nudg[e] their claims across the line from conceivable to plausible." Bell Atlantic, 127 S.Ct. at 1974. "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009).
A. Absolute immunity affirmative defense
Defendants argue that Counts II and IV against the individual Board members should be dismissed, because the members are entitled to absolute immunity for their legislative actions. Bogan v. Scott-Harris, 523 U.S. 44, 54 (1998) ("Local legislators are entitled to absolute immunity from § 1983 liability for their legislative activities."). Absolute immunity, of course, is an affirmative defense. Cooney v. Casady, 652 F. Supp.2d 948, 955 (N.D. Ill. 2009). A plaintiff need not anticipate and plead around an affirmative defense. United States Gypsum Co. v. Indiana Gas Co., 350 F.3d 623, 626 (7th Cir. 2003). Still, a plaintiff "may plead himself out of court by alleging (and thus admitting) the ingredients of a defense." Id.
The Court will consider whether plaintiffs have alleged facts that would establish that the Board members are absolutely immune. Whether the Board members were engaged in legislative action (for which they are immune) or administrative action (for which they are not immune) when they "participated in the Board's decision to terminate Plaintiffs' respective employment" depends on the nature of the action, not on the motive of the official performing the action. Bogan, 523 U.S. at 54. There, the Supreme Court concluded that the "acts of voting for an ordinance [that eliminated the plaintiff's position] were, in form, quintessentially legislative." Bogan, 523 U.S. at 55. Although employment-related decisions ...