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Aku v. Chicago Board of Education

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

November 14, 2017

LU AKU, Plaintiff,



         Plaintiff 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[1] 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[2] 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.

         Factual Background[3]

         Aku, an 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.

         Aku 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.

         On 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.

         While 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. ¶¶ 17, 18.

         Around 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.

         After 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.

         On or 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.

         On 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.

         Aku 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.

         Aku 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).

         Defendant 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. at 5.

         Defendant 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 ¶ 6.

         Aku has 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.

         Aku 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.

         Legal Standard

         A 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.

         To 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.

         The 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).

         With these standards in mind, the Court turns to the allegations in Aku's Complaint.


         Aku 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 ...

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