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Alisha Atwater v. Board of Education of the City of Chicago and Ranoule Tatum

November 5, 2012


The opinion of the court was delivered by: Judge Virginia M. Kendall


Plaintiff Alisha Atwater ("Atwater") filed this lawsuit against Defendants Board of Education of the City of Chicago (the "Board") and Ranoule Tatum ("Tatum") asserting: (1) sexual harassment in violation of Title VII of the Civil Rights Act of 1965, 42 U.S.C. § 2000e; (2) sexual harassment in violation of the Illinois Human Rights Act, 775 ILCS 5/ et seq; (3) assault and battery; and (4) intentional infliction of emotional distress. Pursuant to Federal Rule of Civil Procedure 12(b)(6), the Board moved this Court to dismiss Counts III and IV of Atwater's First Amended Complaint, as against the Board, for failure to state a claim. For the reasons set forth below, the Court dismisses Count III with prejudice and Count IV without prejudice.


The following facts are alleged in Atwater's First Amended Complaint (the "Complaint") and are presumed to be true for purposes of analyzing this motion to dismiss. See Murphy v. Walker, 51 F.3d 714, 717 (7th Cir. 1995). The Board hired Atwater in July 2007 to work as a Youth Outreach Worker. (Doc. 6, ¶ 17.) In September 2010, Defendant Tatum became Atwater's direct supervisor. (Id. at ¶ 18.) Prior to making Tatum Atwater's direct supervisor, the Board identified Tatum with "do not hire" status. (Id. at ¶ 19.) Tatum began to sexually harass Atwater shortly after he was hired. (Id. at ¶ 21.) Over the course of 2010 and into 2011, Tatum repeatedly made inappropriate sexual comments to Atwater, such as: "your man must not know you left the house like that, black turns me on;" and "you got your shirt all zipped up, I can't even see anything." (Id. at ¶¶ 26, 49.) On approximately January 12, 2011, Atwater informed the Department of Education's Equal Employment Compliance Office Administrator that Tatum was harassing her. (Id. at ¶ 27.) The Department of Education did nothing in response to the complaint. (Id. at ¶ 28.)

The next day, while trying on safety vests, Tatum grabbed underneath Atwater's vest to touch her breasts and stated "you are big, but big in the right place." (Id. at ¶ 31.) At the end of January 2011, Tatum offered Atwater money in return for her providing him with sexual favors. (Id. at ¶¶ 38-40.) Atwarter repeatedly complained to her supervisors, Angela Hodge and Ms. McNutt*fn1 ,

about Tatum's conduct. (Id. at ¶¶ 44, 47.) Nothing was done in response to her complaints. (Id. at ¶ 48.) Then, on March 17, 2011, Tatum sent Atwater a sexually explicit and obscene text message. (Id. at ¶ 50.) The next week Atwater filed a complaint with the Law and Labor department. (Id. at ¶ 57.) Atwater's supervisor, McNutt, held a staff meeting to discuss Atwater's complaints. (Id. at ¶ 60.) McNutt asked Tatum to leave the meeting but Tatum surreptitiously recorded the meeting. (Id. at ¶ 61.). Soon thereafter, Tatum went to the Chicago public school where Atwater often worked. (Id. at ¶ 65.) He rifled through her desk and inspected her personal belongings. (Id.) Finally, three months after Atwater filed her initial complaint, the Board suspended Tatum on April 6, 2011. (Id. at ¶ 68.) However, Tatum retained his city-issued cellular telephone. (Id. at ¶ 69.) From March 25, 2011 through May 6, 2011, Tatum used the city-issued telephone to call and harass Atwater. (Id. at ¶ 73.) On May 6, 2011, Atwater obtained an order of protection against Tatum. (Id. at ¶ 74.)

Atwater filed charges of discrimination against the Board and Tatum with the Illinois Department of Human Rights on May 20, 2011. (Id. at ¶¶ 7-8.) The IDHR cross-filed the same charge with the Equal Employment Opportunity Commission. (Id. at ¶ 7.) After receiving her right-to-sue letter, Atwater filed suit in this Court. (Id. at ¶ 10.)


A motion brought pursuant to Federal Rule of Civil Procedure 12(b)(6) "challenges the sufficiency of the complaint to state a claim upon which relief may be granted." Hallinan v. Fraternal Order of Police of Chicago Lodge No. 7, 570 F. 3d 811, 820 (7th Cir. 2009). To state a claim upon which relief may be granted, a complaint must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). "Detailed factual allegations" are not required, but the plaintiff must allege facts that, when "accepted as true . . . 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). "In evaluating the sufficiency of the complaint, [courts] view it in the light most favorable to the plaintiff, taking as true all well-pleaded factual allegations and making all possible inferences from the allegations in the plaintiff's favor." AnchorBank, FSB v. Hofer, 649 F. 3d 610, 614 (7th Cir. 2011).

In analyzing whether a complaint has met this standard, the "reviewing court [must] draw on its judicial experience and common sense." Iqbal, 129 S. Ct. at 1950. When there are well-pleaded factual allegations, the Court assumes their veracity and then determines if they plausibly give rise to an entitlement to relief. Id. A claim has facial plausibility when the pleaded factual content allows the Court to draw a reasonable inference that the defendant is liable for the misconduct alleged. See id. at 1949; see also Indep. Trust Corp. v. Stewart Info. Servs. Corp., 665 F.3d 930, 934-35 (7th Cir. 2012).


The Board raises three arguments for why Atwater's claims are insufficient. First, it contends that they are barred by the one-year statute of limitations found in the Illinois Tort Immunity Act. Ordinarily the statute of limitations is an affirmative defense to be raised in an answer to a complaint. See United States v. Lewis, 411 F.3d 838, 842 (7th Cir. 2005). A plaintiff may, however, "plead [herself] out of court by pleading facts that establish an impenetrable defense to [her] claims." Tamayo v. Blagojevich, 526 F.3d 1074, 1086 (7th Cir. 2008). If the relevant dates are set forth unambiguously in the complaint, a court may dismiss a claim in a Rule 12(b)(6) motion if the claim is precluded by an applicable statute of limitations. See Brooks v. Ross, 578 F.3d 574, 579 (7th Cir. 2009); Lewis, 411 F.3d at 842. The Board also contends that, as a matter of law, it may not be held liable for the alleged acts of Defendant Tatum because they were committed outside the scope of his employment. Finally, the Board contends that the Illinois Human Rights Act preempts Atwater's claim for intentional infliction of emotional distress.

I. The Statute of Limitations under the Illinois Tort Immunity Act

The Illinois Tort Immunity Act (the "Tort Act") states in relevant part that "[n]o civil action...may be commenced in any court against a local entity or any of its employees for any injury unless it is commenced within one year from the date that the injury was received or the cause of action accrued." 745 ILCS 10/8-101(a). Pursuant to 745 ILCS 10/1-206, the Board qualifies as a local entity covered by the Act. See Arteman v. Clinton Community Unit School Dist. No. 5, 198 Ill. 2d 475, 479 (2002); see also Williams v. Chicago Board of Education, No. 97 C 1063, 1997 WL 467289, at *5 (N.D. Ill. Aug. 13, 1997) (finding that the definition of local public entity in the Act includes school boards, therefore, the Board benefits from the one year statute of limitations); Hayes v. Elementary School ...

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