United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
Z. LEE, UNITED STATES DISTRICT JUDGE
Lu Aku (“Aku”) filed this pro se lawsuit
against his former employer, the Board of Education of the
City of Chicago (“the Board”), D'Andre Weaver
(“Weaver”), the principal at the school where Aku
taught until 2014, and thirteen other defendants
(“Non-Board Defendants”). Aku claims that the
Board discriminated against him based on his age, sex, color,
race, national origin, and disability in violation of Title
VII of the Civil Rights Act of 1964 (“Title
VII”), 42 U.S.C. §§ 1981 and 1983, the
Americans with Disabilities Act (“ADA”), and the
Age Discrimination in Employment Act (“ADEA”),
and retaliated against him for asserting his rights under
those acts. Compl. ¶¶ 9, 10, 12(i), ECF No. 1. Aku
further claims that the Non-Board Defendants-a broad range of
parties that includes, among others, the Chicago Teachers
Union, Aku's former medical provider and former
attorneys, two third-party claims administrators for the
Board, and the Illinois Human Rights Commission-conspired
with and aided and abetted the Board in discriminating and
retaliating against him, in violation of Title VII and the
ADA. Id. ¶¶ 12(j), 13(h). The
Board moves to dismiss the complaint in part,
pursuant to Federal Rule of Civil Procedure
(“Rule”) 12(b)(6), ECF No. 76; twelve of the
Non-Board Defendants move, in nine separate motions, to dismiss
the complaint as to each of them pursuant to both Rules
12(b)(1) and 12(b)(6), ECF Nos. 10, 12, 22, 38, 46, 52, 64,
89, and 127. For the reasons given below, the Court grants in
part and denies in part the Board's motion and grants
each of the Non-Board Defendants' motions in full.
African-American man born in 1967, began teaching science at
Gwendolyn Brooks College Preparatory Academy
(“Brooks”), a public school in Chicago, on August
27, 2007. Compl., Ex. Illinois Department of Human Rights
(“IDHR”) and EEOC Charge #15W0707.03
(“Charge 03”) at 1.
experienced a number of challenges during the 2013-14 school
year. In August 2013, Weaver, Brooks's Principal,
informed Aku that Aku would not teach Physics for 2013-14, as
expected, but instead he would teach Biology and
Environmental Science. Pl.'s Resp. Opp'n Parkview
Mot. Dismiss, Ex. 4, Bullying Grievance ¶¶
2, 6, 7, 9, ECF No. 96 (“Bullying Grievance”).
Weaver then provided Aku with insufficient textbooks for his
classes and scheduled Aku to teach during the science
department's common planning time. Id. ¶
9. Aku was also evaluated on a different schedule
from the rest of Brooks's faculty, with a formal
evaluation in fall 2013 and an informal evaluation in the
spring; the other teachers had the reverse schedule, with
their informal evaluation first. Id. ¶ 10;
see Compl. ¶ 13. Furthermore, Weaver
re-assigned Aku's tutoring responsibilities for Biology
and Environmental Science, for which Aku had previously
received overtime pay, to other teachers who were not
teaching those subject areas. Bullying Grievance ¶¶
28-30. On April 4, 2014, Weaver confronted Aku about a
decision he had made to disqualify some Environmental Science
students from taking a chapter test. Id. ¶ 27.
In that conversation, Weaver told Aku that he should consider
leaving the field of teaching. Id. ¶ 27; Compl.
Ex. IDHR and EEOC Charge #15W0807.07 (“Charge
07”) at 2.
April 30, 2014, Aku reported to a Chicago Public Schools
Employment Compliance Administrator that the school
administration had held a meeting in November 2013 for only
African-American teachers, where Weaver had assured the
teachers that their jobs were not in danger. Compl. ¶
16, Charge 07 at 4; Pl.'s Resp. Opp'n Board Mot.
Dismiss ¶ 1, ECF No. 136. Aku received a negative
teaching evaluation from Assistant Principal Shannae Jackson
the following month. Charge 07 at 3. Weaver notified Aku in
late June 2014 that he did not have a position at Brooks for
the 2014-15 school year, Compl. ¶ 12(a), and that he
needed math and science endorsements to teach in Brooks's
new Science, Technology, Engineering & Math
(“STEM”) department. See Bullying
Grievance ¶ 41; Pl.'s Resp. Opp'n Board Mot.
Dismiss ¶ 5. Aku later learned that a computer
endorsement could substitute for a missing math or science
endorsement. Bullying Grievance ¶ 41.
Weaver told Aku about the new department's requirements
on the same day that he notified Aku that he did not have a
position, Weaver had notified other teachers of the new
requirement earlier, allowing them to timely acquire their
math endorsements. Bullying Grievance ¶ 41. According to
Aku, Weaver had notified non-African-American science and
math teachers of the change in their department and job
requirements for 2014-15, before notifying the
African-American teachers. Pl.'s Resp. Opp'n Board
Mot. Dismiss ¶ 9. According to Aku, Weaver then
terminated African-American teachers who lacked those
endorsements, only to later staff the department with
underqualified white teachers. See Id. ¶¶
this time, in June 2014, Aku filed his first claim for
workers' compensation, related to an ankle injury
incurred at Brooks in October 2013. Compl. ¶ 13;
Pl.'s Resp. Opp'n Board Mot. Dismiss ¶ 2;
Pl.'s Resp. Opp'n Parkview Mot. Dismiss at 4. The
ankle injury caused a medial talar dome lesion, which is in
effect “a slow-forming, increasingly painful scar
inside his ankle.” Pl.'s Resp. Opp'n Parkview
Mot. Dismiss at 7.
he was dismissed from Brooks, Aku also began filing IDHR
complaints. He filed his first IDHR complaint on July 7,
2014, claiming that he was terminated from Brooks on June 26,
2014, due to age discrimination. Charge 03 at 1. Two months
later, on August 7, 2014, Aku filed a second IDHR complaint,
alleging harassment and unequal treatment, based on age and
race, from August 2013 to May 2014, Charge 07 at 1-3, and
retaliation and discrimination from May 2014 to August 2014,
due to race and the filing of an earlier discrimination
charge, id. at 3- 4.
about August 25, 2014, the Board began rehiring teachers who
had been laid off from Brooks's math and science
department in June 2014. Compl. Ex., IDHR and EEOC Charge
#15W0909.15 (“Charge 15”) at 2. The Board
recalled similarly situated non-black employees and employees
who were younger than 40, but it did not recall Aku.
Id. at 1-2. Specifically, no African-American
science teachers were recalled to, or hired by, the
department. Bullying Grievance ¶ 42; see also
Compl. ¶ 13.
September 10, 2014, Aku filed a third IDHR complaint,
claiming that he was not recalled back to Brooks due to his
age, race, and national origin. Charge 15 at 1-3. Aku then
worked as a substitute teacher in September 2014. Compl. Ex.,
IDHR and EEOC Charge #15W1027.16 (“Charge 16”) at
2. As of October 29, 2014, he had not received pay for that
work. Id. Aku proceeded to file a fourth and final
IDHR complaint on October 29, 2014, alleging harassment and
unequal pay from April 30 to October 3, 2014, in retaliation
for filing discrimination charges. Id. at 1.
continued to pursue workers' compensation. The Board has
not yet responded to the workers' compensation claim that
he filed in June 2014. Compl. ¶ 13. While a later claim
for workers' compensation was granted in the summer of
2016, Aku still has not received all of the related benefits.
Id. Defendants Sedgwick Claims Management Services
(“Sedgwick”) and Cannon Cochran Management
Services (“Cannon”) are respectively past and
present third-party claims administrators for the Board.
Pl.'s Resp. Opp'n Cannon Mot. Dismiss at 2, ECF No.
80; Cannon Mot. Dismiss at 4, ECF No. 23.
hired the firms of Martay Law (“Martay”) and the
Law Offices of Bradley Dworkin, P.C. (“Dworkin”)
to pursue his workers' compensation claims. Both firms
are named as defendants, as is Jack Sanker
(“Sanker”), an attorney then working at Dworkin.
Compl. ¶ 16(f)(xiii). Aku was displeased with their
performance: Martay Law for not taking any action for
nineteen days after he retained them, Pl.'s Resp.
Opp'n Attorney Review and Disciplinary Committee (ARDC)
Mot. Dismiss ¶ 3, ECF No. 93; and Dworkin and Sanker for
not fully resolving his workers' compensation and total
temporary benefit claims, id. ¶ 4. Aku filed
complaints about Sanker and Martay Law with the Attorney
Review and Disciplinary Commission, which he also sued as a
defendant. See id.; see also
Compl. ¶ 16(f)(xi).
Parkview Orthopaedic Group (“Parkview”) treated
Aku for his ankle injury. Pl.'s Resp. Opp'n Parkview
Mot. Dismiss at 3. Parkview did not determine the root cause
of Aku's ankle injury. Id. at 5. Parkview
released Aku back to full duty on November 9, 2015, without
testing his capability to meet minimum job requirements, or
noting whether Aku was expected to be permanently impaired.
Id. at 2. Throughout 2015 and 2016, Aku found
Parkview unhelpful when he had difficulty filling his
prescriptions and acquiring medical equipment. Id.
Chicago Teachers Union (“Union”) filed grievances
on Aku's behalf related to some of these events.
See Compl. ¶ 16(f)(ix); Pl.'s Resp.
Opp'n Union Mot. Dismiss ¶ 2, ECF No. 114. Defendant
Brian Clauss (“Clauss”) arbitrated hearings
related to those grievances. Compl. ¶¶ 13,
16(f)(xxvi)-(xxviii). Defendant Robin Potter and Associates
(“Potter Law”) served as the Union's legal
representative during this time. Id. ¶
16(f)(xvii); Pl.'s Resp. Opp'n Union Mot. Dismiss
named the IDHR and the Illinois Human Rights Commission
(IHRC) as defendants in this action. During the investigation
of the IDHR charge, the IDHR asked Aku to stop submitting
evidence and eventually dismissed all four charges due to
lack of substantial evidence. Compl. ¶ 13. The IDHR also
required Aku to describe his race as “black”
rather than as African-American. Id.; see also
Id. ¶¶ 16(f)(i), (ii). Aku then
requested that the IHRC review the IDHR's dismissal of
his four charges; as of the filing of the complaint, the IHRC
had not responded. Compl. ¶ 13.
filed a charge with the EEOC on November 9, 2016, broadly
claiming differential treatment and termination by the Board
on the basis of disability, race, national origin, color, and
sex, as well as retaliation for asserting his rights. Compl.
Ex., EEOC Charge, at 1. Aku received a right-to-sue letter
from the EEOC on December 20, 2016. Compl. ¶ 8. Aku
initiated this suit on February 15, 2017.
motion to dismiss pursuant to Rule 12(b)(1) tests the
jurisdictional sufficiency of the complaint. “When
ruling on a motion to dismiss for lack of subject matter
jurisdiction under Federal Rule of Civil Procedure 12(b)(1),
the district court must accept as true all well-pleaded
factual allegations, and draw reasonable inferences in favor
of the plaintiff.” Ezekiel v. Michel, 66 F.3d
894, 897 (7th Cir. 1995). But “[t]he district court may
properly look beyond the jurisdictional allegations of the
complaint and view whatever evidence has been submitted on
the issue to determine whether in fact subject matter
jurisdiction exists.” Capitol Leasing Co. v.
F.D.I.C., 999 F.2d 188, 191 (7th Cir. 1993) (quoting
Grafon Corp. v. Hausermann, 602 F.2d 781, 783 (7th
Cir. 1979)). “[I]f the complaint is formally sufficient
but the contention is that there is in fact no subject matter
jurisdiction, the movant may use affidavits and other
material to support the motion.” United Phosphorus,
Ltd. v. Angus Chem. Co., 322 F.3d 942, 946 (7th Cir.
2003), overruled on other grounds by Minn-Chem, Inc. v.
Agrium, Inc., 683 F.3d 845, 848 (7th Cir. 2012).
“The burden of proof on a 12(b)(1) issue is on the
party asserting jurisdiction.” Id.
survive a motion to dismiss under Rule 12(b)(6), a complaint
must “state a claim to relief that is plausible on its
face.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007). “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, 556 U.S. 662, 678 (2009). Additionally, when
considering motions to dismiss, the Court accepts “all
well-pleaded factual allegations as true and view[s] them in
the light most favorable to the plaintiff.”
Lavalais v. Vill. of Melrose Park, 734 F.3d 629, 632
(7th Cir. 2013) At the same time, “allegations in the
form of legal conclusions are insufficient to survive a Rule
12(b)(6) motion.” McReynolds v. Merrill Lynch &
Co., Inc., 694 F.3d 873, 885 (7th Cir. 2012) (citing
Iqbal, 556 U.S. at 678). As such,
“[t]hreadbare recitals of the elements of the cause of
action, supported by mere conclusory statements, do not
suffice.” Iqbal, 556 U.S. at 678.
Court is mindful that “a pro se complaint, however
inartfully pleaded, must be held to less stringent standards
than formal pleadings drafted by lawyers.” Erickson
v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle
v. Gamble, 429 U.S. 97, 106 (1976)). Nevertheless, while
the Court gives liberal construction to a pro se
plaintiff's complaint, “it is also well established
that pro se litigants are not excused from compliance with
procedural rules.” Pearle Vision, Inc. v.
Romm, 541 F.3d 751, 758 (7th Cir. 2008).
these standards in mind, the Court turns to the allegations
in Aku's Complaint.
claims that the Board discriminated against him on the basis
of color, national origin, race, and sex, under Title VII; on
the basis of color, national origin, and race under 42 U.S.C.
§§ 1981 and 1983; on the basis of age under the
ADEA; on the basis of disability under the ADA; and
retaliated against him for asserting his rights. Compl.
¶¶ 9, 12(i). The Board's alleged discriminatory
actions include unequal terms and conditions of employment,
unjust termination, and failure to rehire on the basis of
age, race, color, and national origin; failure to accommodate