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El-Akrich v. Board of Trustees of University of Illinois

United States District Court, C.D. Illinois, Springfield Division

February 26, 2018

DRISS EL-AKRICH, Plaintiff,
v.
BOARD OF TRUSTEES OF THE UNIVERSITY OF ILLINOIS; KAREN MORANSKI, Associate Vice-Chancellor, in her Official and Individual Capacity; JONATHAN GOLDBERGBELLE, Senior Director of International Programs and Internships, in his Official and Individual Capacity; LAURA ALEXANDER, Senior Director Human Resources, in her Official and Individual Capacity; DONNA MCNEELY, Executive Director of the University Ethics and Compliance Office, in her Official and Individual Capacity, Defendants.

          ORDER

          SUE E. MYERSCOUGH UNITED STATES DISTRICT JUDGE.

         This cause is before the Court on the Motion to Dismiss Plaintiff's Second Amended Complaint Pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6) (d/e 32) filed by Defendants Board of Trustees of the University of Illinois, Karen Moranski, Jonathan GoldbergBelle, and Laura Alexander. The Motion is GRANTED IN PART and DENIED IN PART. Counts VI and VII are dismissed without prejudice and with leave to replead. Plaintiff Driss El-Akrich is also granted leave to file an amended complaint clarifying which Defendant(s) are named in which counts. Counts I, II, III, IV, V, VIII, and IX[1] remain.

         I. JURISDICTION

         This Court has subject matter jurisdiction because Plaintiff's claims are based on federal law: Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.; 42 U.S.C. § 1981; 42 U.S.C. § 1983; 42 U.S.C. § 1985; and Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d et seq. See 28 U.S.C. § 1331 (“The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States”). The Court has supplemental jurisdiction over the State law claim pursuant to 28 U.S.C. § 1367. Venue is proper because a substantial part of the events or omissions giving rise to Plaintiff's claims occurred in this district. 28 U.S.C. § 1391(b)(2).

         II. LEGAL STANDARD

         A motion under Rule 12(b)(6) challenges the sufficiency of the complaint. Christensen v. Cnty. of Boone, Ill., 483 F.3d 454, 458 (7th Cir. 2007). To state a claim for relief, a plaintiff need only provide a short and plain statement of the claim showing he is entitled to relief and giving the defendants fair notice of the claims. Tamayo v. Blagojevich, 526 F.3d 1074, 1081 (7th Cir. 2008).

         When considering a motion to dismiss under Rule 12(b)(6), the Court construes the complaint in the light most favorable to the plaintiff, accepting all well-pleaded allegations as true and construing all reasonable inferences in plaintiff's favor. Id. However, the complaint must set forth facts that plausibly demonstrate a claim for relief. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 547 (2007). A plausible claim is one that alleges factual content from which the Court can reasonably infer that the defendants are liable for the misconduct alleged. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Merely reciting the elements of a cause of action or supporting claims with conclusory statements is insufficient to state a cause of action. Id.

         Pursuant to Federal Rule of Civil Procedure 12(b)(1), a defendant may move for dismissal of a claim for lack of subject matter jurisdiction. Fed.R.Civ.P. 12(b)(1). When considering a Rule 12(b)(1) motion, this Court accepts as true all well-pleaded factual allegations and draws all reasonable inferences in favor of the plaintiff. Alicea-Hernandez v. Catholic Bishop of Chi., 320 F.3d 698, 701 (7th Cir. 2003). However, the plaintiff bears the burden of proving the jurisdictional requirements have been met. Ctr. For Dermatology & Skin Cancer Ltd. v. Burwell, 770 F.3d 586, 588 (7th Cir. 2014).

         III. FACTS

         In November 20, 2017, Plaintiff filed his Second Amended Complaint against the Board of Trustees of the University of Illinois (the University); Karen Moranski, the Associate Vice-Chancellor of Undergraduate Education at the University of Illinois-Springfield (UIS); Jonathan GoldbergBelle, the Senior Director of International Programs and Internships at UIS; Laura Alexander, the Senior Director of Human Resources at UIS; and Donna McNeeley, the Director of the University Ethics and Compliance Office at UIS. The claims against the individuals are brought against them in both their official and individual capacities.

         The Second Amended Complaint contains the following allegations, which the Court accepts as true for purposes of the motion to dismiss. Tamayo, 526 F.3d at 1081.

         Plaintiff is a Doctoral Candidate from Morocco, who was, at the time of the events in question, on a student visa. Plaintiff is Middle Eastern/Arab and Muslim.

         On August 16, 2011, Plaintiff began his employment with the University as a part-time adjunct instructor in the Intensive English Program (IEP). The IEP provides high quality teaching of English to speakers of other languages. The goal is to provide non-native speakers the skills they need to study at an American university.

         On June 15, 2013, Plaintiff was promoted to Interim Director of the IEP. Plaintiff was in charge of strategic planning, including program development, curriculum, and assessment. He was charged with growing the program and setting up policies and procedures required by the Commission on English Language Program Accreditation (CEA). It was the University's goal to obtain CEA accreditation for the IEP. Plaintiff was also responsible for hiring, supervision, overall training, and professional development for faculty and support staff. His job duties included promoting and actively recruiting for the IEP. The program grew under Plaintiff, mainly with Middle Eastern/Arab Muslim students.

         In January 2014, the IEP hired Jacqueline Tanner as a Visiting Clinical Instructor to develop the policies and procedures necessary to obtain accreditation from the CEA. Plaintiff alleges that Tanner made complaints of discrimination and ultimately suffered from retaliation. Tanner has also filed a lawsuit in this Court, Case No. 17-3039.

         On July 1, 2015, the IEP underwent a reorganization. On July 15, 2015, Defendant GoldbergBelle became Plaintiff's immediate supervisor. Prior to the reorganization, GoldbergBelle conducted an assessment of IEP. GoldbergBelle met with Plaintiff and inquired about the program's growth, the Middle Eastern/Arab Muslim students, and the future goals of the program.

         On August 3, 2015, Plaintiff met with Defendant Moranski, GoldbergBelle's supervisor, and reported discriminatory behavior by GoldbergBelle and his Program Coordinator, Barbara Sykes, against exchange students in the Proyecta program from Mexico and discriminatory behavior against Plaintiff. The discriminatory actions included GoldbergBelle initially refusing to issue visas for the Mexican students claiming, “it was too much work.” GoldbergBelle later stopped Plaintiff from collecting fees in cash from the Mexican students, even though cash was the only method of payment available to these exchange students. When GoldbergBelle learned that Plaintiff was collecting fees from the students and taking the cash to the cashier's office, GoldbergBelle insisted that his Business Administrative Assistant, Linette Hughes, and his Staff Clerk, Ashley Towel, accompany Plaintiff to verify that Plaintiff was giving all of the cash to the cashier's office. GoldbergBelle would also not allow Plaintiff to pay for the transportation of Mexican students to the St. Louis airport out of the funds collected from the Mexican students, but GoldbergBelle always provided transportation to his Asian exchange students. Moranski did not investigate Plaintiff's complaints.

         In September 2015, GoldbergBelle presented his Assessment Report. As part of the Report, GoldbergBelle took over most of Plaintiff's Interim Director duties. GoldbergBelle decided, contrary to IEP procedures, that he (GoldbergBelle) would conduct all IEP faculty meetings. GoldbergBelle also decided that all hiring in the IEP would be done under his direction, contrary to the CEA guidelines. Plaintiff's duties were now to be conducted jointly with either GoldbergBelle or Tanner. The only job Plaintiff could do unsupervised was to conduct a Faculty Development Seminar where there would be several white faculty members present to observe him.

         In October 2015, GoldbergBelle indicated that he, GoldbergBelle, would be in charge of issuing visas for all IEP students and directed all teachers to send absences and grades to him. This action obstructed Plaintiff's ability to perform his responsibilities. GoldbergBelle also decided that he would be responsible for terminating those IEP students who failed to make satisfactory progress in the IEP program.

         Plaintiff alleges that GoldbergBelle treated him with suspicion, even though Plaintiff was following the same procedures for reporting student absences as his white, Jewish predecessor. GoldbergBelle and Moranski refused to address Plaintiff as the Interim Director of IEP. Plaintiff also alleges that GoldbergBelle was very concerned about the Middle Eastern/Arab Muslim students and their absences, telling Plaintiff that Plaintiff should have deported a Middle Eastern student who missed more than one class. However, GoldbergBelle was not concerned when two Chinese students were gone for almost an entire semester or when a Vietnamese student took a placement test in the summer of 2015 and then disappeared until the fall semester.

         During the first session in the fall of 2015, Plaintiff reported to Defendants GoldbergBelle and Moranski insubordination by Sue Alexander[2], an adjunct professor. Sue Alexander told Plaintiff she was reporting absences to GoldbergBelle and not to Plaintiff because it was a matter of “Homeland Security” and “it was the American Way.”

         On October 2015, GoldbergBelle's Business Administrative Assistant, Hughes, opened mail addressed to Plaintiff without his permission. Hughes took tuition checks and did not notify Plaintiff so that he could balance the student accounts.

         In the fall of 2015, Plaintiff met with Defendant Moranski and reported that GoldbergBelle was not following established procedures under the CEA guidelines. Plaintiff also complained that he was being marginalized by GoldbergBelle, who had created a hostile environment and made it difficult for Plaintiff to do his job. Plaintiff reported that Hughes would not allow Plaintiff to purchase routine items for the IEP department unless approved by GoldbergBelle. Moreover, Plaintiff was kept “out of the information loop.” Sec. Am. Compl. ¶ 43.

         Plaintiff learned of complaints that Middle Eastern/Arab Muslim students made to Tanner against adjunct professors Rebecca Damery (Damery) and Sue Alexander, alleging disparate treatment, including: (1) Damery's refusal to allow a Middle Eastern/Arab Muslim student to attend her class, even though he was on the class roster, and ordering him to obtain a note from the IEP office to verify that he was correctly placed her in class, even though she knew there was no staff in the office available to provide him with such a note; and (2) disparity between the grades and progression reports received by two Middle Eastern/Arab Muslim students and a female Vietnamese student in Sue Alexander's class.

         On November 25, 2015, during a bi-weekly meeting, Plaintiff reported students' complaints of discrimination to Defendants Moranski and GoldbergBelle. Plaintiff also raised concerns about the inexperience of the present IEP faculty in teaching CEA accredited programs. Plaintiff believed that Moranski and GoldbergBelle agreed to hire three new CEA experienced facility for spring of 2016 and that the adjunct professors' hours would be reduced. Plaintiff was ultimately informed, however, that it was too late to hire new teachers.

         GoldbergBelle asked Plaintiff to prepare a schedule for spring of 2016. Plaintiff submitted for approval a preliminary class schedule that did not include Sue Alexander and Damery. On December 23, 2015, Plaintiff was informed that Moranski decided to give Sue Alexander and Damery one course each. That schedule was amended to give Sue Alexander and Damery one course each.

         On January 4, 2016, Plaintiff met with the Provost, Lynn Pardie, and reported in detail the discrimination faced by the Middle Eastern/Arab Muslim students and by himself in the IEP Department. He complained about the hostility, suspicion, and harassment perpetuated by Defendant GoldbergBelle and his staff, as well as the insubordination of the adjuncts, Sue Alexander and Damery. He reported that all of this made it difficult for him to perform his duties.

         On January 6, 2016, Plaintiff was advised by Defendant Laura Alexander, Senior Director of Human Resources, that Sue Alexander and Damery had complained because their hours had been reduced for the spring semester in retaliation. Defendant Laura Alexander wanted to meet with Plaintiff. GoldbergBelle told Plaintiff not to respond to or contact Laura Alexander until he, GoldbergBelle, had a chance to discuss it with his supervisor, Moranski. Moranski also instructed Plaintiff to follow GoldbergBelle's advice.

         On January 19, 2016, Defendant Donna McNeely, Executive Director of the Ethics and Compliance Office, contacted Plaintiff to schedule a meeting to address concerns with the IEP. On January 25, 2016, Plaintiff met with McNeely and Traci Roth, Associate Director of Ethics, about the IEP program and the class scheduling process. Defendant McNeely wanted to know why Sue Alexander and Damery's hours were reduced. Defendant McNeely also asked Plaintiff about the growth of the program with Middle Eastern/Arab Muslim students.

         In response, Plaintiff read Defendant Moranski's email to Defendant McNeely in which Moranski stated that she would make the final determination regarding the spring of 2016 schedule. Plaintiff also reported the students' complaints against Sue Alexander and Damery and reported the discrimination and hostile environment created by Defendants GoldbergBelle and Moranski against Plaintiff and the Middle Eastern/Arab Muslim students.

         On February 4, 2016, Defendant GoldbergBelle refused to give IEP Program Assistant Badaria Luteify, a Middle Eastern/Arab Muslim, University credit cards, despite the fact that the same cards were previously provided to white, Christian IEP Program Assistants in the IEP department. Plaintiff reported this to the Associate Chancellor for Public Affairs, Ryan Croke. Plaintiff also informed Croke of discrimination against Middle Eastern/Arab Muslim students by Defendant GoldbergBelle's Program Coordinator, Barbara Sykes, who complained (the Second Amended Complaint does not state to whom she complained) that she feared for her safety when Middle Eastern men were dropped off in the driveway in front of the Brookens library at UIS.

         On February 23, 2016, Plaintiff complained to Moranski about GoldbergBelle's treatment of Luteify and complained that the environment was too hostile for him to perform his duties. Plaintiff stated he was going to go to the Equal Employment Opportunity Commission (EEOC). Defendant Moranski turned red and stated she would not support Plaintiff if he went to the EEOC.

         On February 29, 2016, Moranski and GoldbergBelle gave Plaintiff a letter stating that Defendant McNeely had found Plaintiff guilty of retaliation and that Plaintiff was being placed on administrative leave immediately. Plaintiff was told to have no contact with anyone from the University, not even for his doctoral studies.

         On March 3, 2016, Plaintiff met with Defendants Alexander and Moranski in the Human Resources Office and shared the students' complaints. Defendant Laura Alexander wanted to know why Sue Alexander and Damery were not on the preliminary schedule and why their hours were reduced to one course each in spring of 2016. Plaintiff read Moranski's email, which stated that Moranski was going to decide who to hire for spring of 2016. Plaintiff also shared the Middle Eastern/Arab Muslim students' complaints about Sue Alexander and Damery. Plaintiff told Laura Alexander that he did not have independent authority to hire anyone without GoldbergBelle and Moranski's approval.

         On March 18, 2016, Plaintiff received Defendant Laura Alexander's Recommendation Letter in which she found that Plaintiff was solely responsible for retaliation against Sue Alexander and Damery. Laura Alexander recommended that Plaintiff be terminated immediately. Laura Alexander praised Defendants Moranski and GoldbergBelle and stated it was only by their intervention that Sue Alexander and Damery were able to teach any courses in spring of 2016.

         On March 21, 2016, Plaintiff and Tanner met with Deanie Brown, Associate Chancellor, Office of Access and Equal Opportunity, about their complaints of discrimination against Plaintiff by Defendant GoldbergBelle, the discrimination against the Middle Eastern/Arab Muslim students, and the pre-textual retaliation claim brought against Plaintiff and Tanner for reporting discrimination.

         On April 27, 2016, Defendant Moranski sent an email to Plaintiff informing him that he may return to active work status through the completion of his contract on May 15, 2016. His duties would, however, be separate from IEP and his contract would not be renewed. Plaintiff was directed to work from home and obtain prior approval from Moranski for all visits to the campus. He was not to contact anyone in IEP and was directed to forward all emails and contacts to GoldbergBelle.

         Plaintiff alleges that the wrongful ethics violation on his record has caused significant harm to Plaintiff's career and professional reputation. He has been unable to procure ...


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