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Aberman v. Board of Education of City of Chicago

United States District Court, N.D. Illinois, Eastern Division

September 30, 2014

MARCIE ABERMAN, Plaintiff,
v.
BOARD OF EDUCATION OF THE CITY OF CHICAGO, ET AL., Defendants.

MEMORANDUM OPINION AND ORDER

ROBERT M. DOW, Jr., District Judge.

This matter is before the Court on Defendants' partial motion to dismiss Plaintiff's first amended complaint [37]. For the reasons stated below, the Court grants in part and denies in part Defendants' partial motion to dismiss [37].

I. Background[1]

In March 1987, Plaintiff Marcie Aberman was hired as a mathematics teacher at Nicholas Senn High School ("Senn") in Chicago, Illinois. During school years 2005-2006 and 2007-2008, Aberman was rated "excellent" by Senn's former school principal. On March 21, 2011, Aberman received an "unsatisfactory" performance rating from Senn's new principal, Defendant Susan Lofton, and was assigned to the teacher reassignment pool on July 8, 2011. Aberman has an auditory impairment and is over the age of 40.

On July 20, 2011, Aberman filed a charge with the Illinois Department of Human Rights ("IDHR") against Lofton and Defendant Board of Education of the City of Chicago, alleging age and disability discrimination. Aberman claimed that she was given an unsatisfactory evaluation, forced to take involuntary leave, and placed in the reassigned teacher pool. On August 28, 2012, the IDHR issued a Notification of Dismissal for Lack of Substantial Evidence. On December 3, 2012, Aberman filed a Request for Review of the dismissal with the Illinois Human Rights Commission (IHRC). She also filed the a complaint in the Circuit Court of Cook County, Illinois, seeking redress for her Illinois Human Rights Act (IHRA) claims and other state and federal claims. Defendants removed the matter to federal court.

Defendants, relying on the Illinois Human Rights Act ("IHRA"), moved to dismiss Plaintiff's complaint, arguing that because Aberman elected to proceed before the IHRC, she could not commence an action in the Circuit Court of Cook County (which was subsequently removed to this court). The Court agreed and granted Defendants' motion to dismiss, as the Illinois Human Rights Act ("IHRA") statutory scheme expressly states that "[i]f the complainant chooses to file a request for review with the Commission, he or she may not later commence a civil action in a circuit court. " 775 ILCS 5/7A-102(D)(3) (emphasis added). Aberman then moved to reconsider, clarifying that she first filed suit in state circuit court on December 3, 2012, and then subsequently forwarded a copy of the state court complaint to the IDHR, informing the IDHR of the state court cause of action and seeking review from the Commission. Having clarified the timeline of events, the Court granted Plaintiff's motion to reconsider and allowed Plaintiff to proceed with her lawsuit, as it was not commenced after a request for review with the Commission and Plaintiff no longer had any action pending or stayed with the Commission.

Plaintiff then filed her first amended complaint on April 2, 2014. Plaintiff's first amended complaint against Defendants Board of Education of the City of Chicago and Susan Lofton contains 10 counts: age discrimination in violation of the Age Discrimination in Employment Act ("ADEA") and the Illinois Human Rights Act ("IHRA") against the Board (Count I); disability discrimination in violation of the IHRA and the Americans with Disabilities Act ("ADA") against the Board (Count II); violations of the Rehabilitation Act § 504 against the Board and Lofton (Count III); violations of the Family Medical Leave Act ("FMLA") against the Board and Lofton (Count IV); Fourteenth Amendment due process against the Board and Lofton (Count V); Fourteenth Amendment and Illinois Constitution Article II substantive due process against the Board and Lofton (Count VI); breach of contract against the Board (Count VII); intentional interference with contractual relations against Lofton (Count VIII); mandamus under Illinois School Code Section 34-85 (Count IX); and negligent supervision against the Board (Count X). Defendants partially move to dismiss Plaintiff's amended complaint.

II. Legal Standards

A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the sufficiency of the complaint, not the merits of the case. See Gibson v. City of Chi., 910 F.2d 1510, 1520 (7th Cir. 1990). To survive a Rule 12(b)(6) motion to dismiss, the complaint first must comply with Rule 8(a) by providing "a short and plain statement of the claim showing that the pleader is entitled to relief, " such that the defendant is given "fair notice of what the * * * claim is and the grounds upon which it rests.'" Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). Second, the factual allegations in the claim must be sufficient to raise the possibility of relief above the "speculative level, " assuming that all of the allegations in the complaint are true. E.E.O.C. v. Concentra Health Servs., Inc., 496 F.3d 773, 776 (7th Cir. 2007) (quoting Twombly, 550 U.S. at 555). "[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged - but it has not show[n]' - that the pleader is entitled to relief.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Fed.R.Civ.P. 8(a)(2)). For a claim to be plausible, the plaintiff must put forth enough "facts to raise a reasonable expectation that discovery will reveal evidence" supporting the plaintiff's allegations. Brooks v. Ross, 578 F.3d 574, 581 (7th Cir. 2009). The Court reads the complaint and assesses its plausibility as a whole. See Atkins v. City of Chi., 631 F.3d 823, 832 (7th Cir. 2011); cf. Scott v. City of Chi., 195 F.3d 950, 952 (7th Cir. 1999) ("Whether a complaint provides notice, however, is determined by looking at the complaint as a whole.").

III. Discussion

Defendants Board and Susan Lofton move to partially dismiss Plaintiff's 10-count complaint. Specifically, Defendants challenge Counts III, V, VI, VIII, IX, and X in their entirety; Counts I and II to the extent that Plaintiff failed to exhaust administrative remedies; and Count IV as to Lofton only. In her response, Plaintiff did not address the following arguments that Defendants raised in their motion to dismiss: (1) that Counts V and VI should be dismissed because they attempt to make claims directly under the United States and Illinois Constitutions; (2) that Plaintiff's due process claim (Count V) should be dismissed because she has adequate state law and post-deprivation remedies; (3) that Plaintiff's claim for mandamus must be dismissed (Count IX); and (4) that Plaintiff's negligent supervision claim is barred by the statute of limitations. Because Plaintiff did not address Defendants' arguments in her response to the motion to dismiss, she has waived these claims. See Alioto v. Town of Lisbon, 651 F.3d 715, 721 (7th Cir. 2011) (affirming district court's dismissal order against plaintiff that failed to address defendants' arguments supporting dismissal: "Longstanding under our case law is the rule that a person waives an argument by failing to make it before the district court * * * * We apply that rule * * * * where a litigant effectively abandons the litigation by not responding to alleged deficiencies in a motion to dismiss."). Therefore, the Court will grant Defendants' motion to dismiss as it pertains to Counts V, VI, IX, and X, and proceed to the challenged counts.

A. Failure to Exhaust Administrative Remedies

Counts I and II of Plaintiff's amended complaint allege age and disability discrimination under four separate theories: (1) intentional discrimination; (2) failure to accommodate; (3) disparate impact; and (4) failure to rehire.[2] Before filing suit in federal court under the ADA and ADEA, a plaintiff must file a timely charge with the EEOC. Doe v. Oberweis Dairy, 456 F.3d 704, 708 (7th Cir. 2006); Gorence v. Eagle Food Ctrs., 242 F.3d 759, 763 (7th Cir. 2001); see also 29 U.S.C. § 626(d), (e); 42 U.S.C. § 12117(a); 42 U.S.C. § 2000e-5(b), (e), & (f). Plaintiff also brings her age and disability discrimination claims pursuant to the Illinois Human Rights Act ("IHRA"). Like the federal statutory counterparts, Plaintiff must exhaust administrative remedies for her age and disability discrimination claims brought pursuant to the IHRA. See Elgin v. Waste Mgmt. of Ill., Inc., 348 Ill.App.3d 929, 935 (Ill.App.Ct. 2nd Dist. 2004).

Defendants contend that Plaintiff has failed to exhaust her administrative remedies on her failure to accommodate and failure to rehire claims. In response, Plaintiff claims that she did not provide sufficient information in her pleadings for the Court to assess whether she exhausted her administrative remedies. However, Plaintiff states in her amended complaint that she "received a right to sue letter from the IDHR in August 2012, Exhibit G, and filed suit based on that letter on December 3, 2012." Plaintiff further states that "[i]n April 2013, [she] received a right-to-sue letter from the EEOC * * * subsequently informed Defendants thereof, " citing to Exhibit H, which is attached to the amended complaint. While a plaintiff has no obligation to attach particular documents to her complaint, if a plaintiff fails to attach the document upon which her complaint was based, a defendant may introduce that document. See Venture Assoc. Corp. v. Zenith Data Sys. Corp., 987 F.2d 429, 431 (7th Cir. 1993) (citation omitted). Documents that are attached by a defendant to a motion to dismiss "are considered part of the pleadings if they are referred to in ...


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