United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
Virginia M. Kendall United States District Judge.
Graham sued the Board of Education of the City of Chicago
mainly because it tried (and continues to try) to collect
insurance premiums that Graham failed to pay while suspended
from June 2017 to February 2018. (Dkt. 1.) The Court
previously dismissed Graham's complaint because it failed
to state a claim. (Dkt. 41.) Graham then amended her
complaint asserting her original claims-in addition to
several new ones-against the Board and two new defendants:
Health Care Services Corporation (HCSC) and Chicago Teachers
Union, Local No. 1. (Dkt. 51.) Graham later voluntarily
dismissed Count XII alleged against the Board and the Union
under Federal Rule of Civil Procedure 41(a)(1)(A)(i). (Dkt.
Board again moved to dismiss arguing Graham failed to cure
the deficiencies the Court identified in her original
complaint. (Dkt. 64.) It also contended, as did HCSC in its
own motion to dismiss (Dkt. 66), that Graham never lost
health insurance coverage, so the defendants never needed to
notify her that she could elect to continue her benefits
under federal law. Because Graham failed to cure the
deficiencies in her original complaint, and her new claims
are facially implausible, the Court grants the Board's
motion to dismiss (Dkt. 64) with prejudice and HCSC's
motion without prejudice (Dkt. 66). Graham may replead
against HCSC, if she is able to, by 7/15/2019.
Court assumes the parties' familiarity with the relevant
facts as recounted in the first opinion dismissing
Graham's claims in her original complaint. See Graham
v. Bd. of Educ. of City of Chicago, No. 18 C 4761, 2019
WL 215098, at *1 (N.D. Ill. Jan. 16, 2019). Graham repleaded
the same first eight counts against the Board that she
alleged in her original complaint, adding little to no new
facts. The Court will briefly cover each count from the
recapping, though, a preliminary issue merits discussion. The
purpose of an amended complaint is to cure the deficiencies
in the original complaint. See Lee v. Ne. Illinois
Reg'l Commuter R.R. Corp., 912 F.3d 1049, 1052-53
(7th Cir. 2019). It is not to repeat the same allegations
that the Court has already decided do not allow it to draw
the reasonable inference that the Board is liable for the
misconduct alleged. See Chestnut v. Finck, 722
Fed.Appx. 115, 118 (3d Cir. 2018). In repleading, it is
simply not enough to state conclusions that parrot the
Court's legal analysis and are “devoid of further
factual enhancement.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009); see Manning v. Bos. Med.
Ctr. Corp., 725 F.3d 34, 43 (1st Cir. 2013). Keeping
that in mind, the Court turns to its consideration of the
Graham pleads minimal new factual content alleging that the
Board's benefit plan is not a governmental plan, thus
subjecting it to the Employee Retirement Income Security Act
(ERISA). Seeking to cure this defect, Graham adds the
conclusory statement that the Board's benefits plans
“are funded and maintained in part by private companies
that own and operate charter schools in Chicago.” (Dkt.
51 ¶ 16.) Graham goes on to plead how charter school
employees were eligible to participate in-and in some cases
did participate in-the Board's benefit programs.
Id. ¶¶ 13-14.
Court ruled previously, the statute's text does not hinge
on participation; it hinges on whether the government
establishes or maintains the plan. See 29 U.S.C.
§ 1002(32); Koval v. Washington Cty. Redevelopment
Auth., 574 F.3d 238, 242 (3d Cir. 2009) (internal
citations omitted). Beyond that, “‘a plan need
only be established or maintained by a governmental
entity in order to constitute a governmental
plan.'” Graham v. Hartford Life & Acc. Ins.
Co., 589 F.3d 1345, 1353 (10th Cir. 2009) (internal
citation omitted) (emphasis in original). Here, Graham
effectively concedes that the Board established the plan
while partially maintaining it alongside private partners.
(Dkt. 51 ¶ 16.)
accepting that as true, it does not much matter that private
charter school companies partially maintain-through funding
or otherwise-the plan. The Board need only have established
the plan for the governmental exemption to apply. See
Hightower v. Texas Hosp. Ass'n, 65 F.3d 443, 451
(5th Cir. 1995); see also Roy v. Teachers Ins. &
Annuity Ass'n, 878 F.2d 47, 49-50 (2d Cir. 1989)
(illustrating Rose v. Long Island Railroad Pension
Plan, 828 F.2d 910 (2d Cir.1987), cert. denied,
485 U.S. 936 (1988)); Silvera v. Mut. Life Ins. Co. of
New York, 884 F.2d 423, 427 (9th Cir. 1989);
Feinstein v. Lewis, 477 F.Supp. 1256, 1260 (S.D.N.Y.
1979), aff'd, 622 F.2d 573 (2d Cir. 1980).
Moreover, the Board allegedly pays the employer portion of
insurance premiums under the plan, which means it further
establishes it even though another entity supposedly
administers it. See Fromm v. Principal Health Care of
Iowa, Inc., 244 F.3d 652, 653 (8th Cir. 2001).
Therefore, the plan is not subject to ERISA, and Graham
failed to state claims upon which the Court can grant her
relief in Counts I and II.
Graham fails to assert new facts that make her First
Amendment claim plausible. Graham again pleads that she
petitioned “for a hearing to challenge the
circumstances surrounding her suspension . . .” (Dkt.
51 ¶ 63.) Then Graham concludes that she did this
“in part . . . to reform the Chicago Public Schools
system . . . [and] to advance a political or social idea of
interest to the community . . .” Id.
¶¶ 63-64. The amended complaint remains devoid of
any factual content indicating that Graham's testimony at
the hearing was in her capacity as a private citizen and not
a personally aggrieved employee. See McArdle v. Peoria
Sch. Dist. No. 150, 705 F.3d 751, 754 (7th Cir. 2013).
also pleads no facts that show how her suspension was a
matter of public concern rising to the level of a political
or social idea. See Kubiak v. City of Chicago, 810
F.3d 476, 483 (7th Cir. 2016). Indeed, it is unclear what
policy Graham allegedly sought to challenge: the so-called
suspension policy or the public speech policy. Confusion
aside, individual personnel disputes are just not publicly
relevant. Graham participated as a witness in the hearing on
her appeal of the Board's termination recommendation.
Graham failed to allege how her speech motivates the