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Cairone v. McHenry County College

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

August 9, 2019

DRAGA CAIRONE, Plaintiff,
v.
MCHENRY COUNTY COLLEGE, et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          Robert M. Dow, Jr., United States District Judge.

         This matter is before the Court on Defendants' motion to dismiss [34]. For the reasons set forth below, the motion is granted in part and denied in part. The parties are given until August 23, 2019 to file a supplemental brief of no more than five pages addressing whether Plaintiff's ADA, retaliation, and breach of contract claims against the individual Defendants should be dismissed. The case is set for status on September 3, 2019 at 9:00 a.m.

         I. Background

         Defendant McHenry County College (“MCC”) is a county institution of higher education operated by McHenry County. [32, at ¶ 4.] Plaintiff Draga Cairone was a student enrolled at MCC during the relevant period. [Id. at ¶ 3.] Plaintiff has autism, which prevents her from being able to understand body language, understand sarcasm, or detect lies. [Id. at ¶ 6.] MCC learned about Plaintiff's autism in 2009. [Id. at ¶ 8.] Plaintiff was disciplined by MCC on numerous occasions, including in 2009, 2012, 2013, and 2015.

         This lawsuit relates primarily to disciplinary proceedings against Plaintiff in 2015. On or about May 11, 2015, Plaintiff received notice directing her to meet with Defendant Talia Koronkiewicz, the official then in charge of student discipline, to discuss “possible violations” of MCC's Student Code of Conduct (the “Code”). [Id. at ¶ 11.] Plaintiff was only given two days to prepare for the meeting and was not given any further information about what the “possible violations” were. [Id.] Koronkiewicz had been investigating and documenting allegations that Plaintiff had engaged in inappropriate behavior in the student lounge. [Id. at ¶ 12.] Specifically, other students alleged that Plaintiff engaged in nonconsensual touching, unwanted physical closeness, and shaking the bottom of her bra cups in a way that made other students uncomfortable (what the parties refer to as the “boobie dance”). [Id.]

         Plaintiff alleges that Koronkiewicz reported that three students made statements- presumably about the alleged misconduct. [Id.] Koronkiewicz said that these students said that nobody wanted to confront Plaintiff because-according to the students-she is “dramatic and makes people feel bad.” [Id. at ¶ 13.] The students also said that Plaintiff would nestle, cuddle, or lie on other students without asking. [Id.] One student said that Plaintiff was “always touching” her even though she would tell Plaintiff to stop. [Id.] Plaintiff alleges that on all occasions she distributed written or digital consent forms for other students to sign, explaining her cognitive limitations and asking for consent to touch or to engage in other intimate behavior that might call for consent. [Id. at ¶ 14.] When someone declined to sign the consent form, Plaintiff would not engage in intimate behavior with the student (with the exception of one individual named Brandon Marciel). [Id.] The point of these forms was to ensure that Plaintiff had express consent. [Id.]

         On May 13, 2015, Koronkiewicz interviewed Plaintiff regarding these allegations. [Id. at ¶ 15.] In the May 13, 2015 interview, Koronkiewicz told Plaintiff, “you need to learn to read body language. Everyone else can, so can you. If you can't you can't receive or give consent.” [Id. at ¶ 18.] At the interview, Plaintiff asked Koronkiewicz to consult with an advisor or person with knowledge of and expertise in autism so that the disciplinary board could have the benefit of advice from someone with knowledge of Plaintiff s disability. [Id. at ¶ 19.]

         Koronkiewicz's notes from the meeting indicate that she and Plaintiff discussed Plaintiffs “excessive contact without asking.” [Id. at ¶ 15.] The notes do not indicate that Plaintiff admitted to such touching. [Id.] Plaintiff told Koronkiewicz that she touched the bottom of her bra cups for medical reasons, not as a sexual provocation. [Id.] The notes from the meeting indicate that Plaintiff:

• Admitted to asking “if people want[ed] to see her bondage gear, but no nudes.”
• Said that her “friends have told her she may be unethical and now [she] doesn't know if she understands consent.”
• Admitted to knowing that her conduct made people uncomfortable and that she had learned that people do not tell her this.
• Admitted to sending a text in which she discussed another student as “the object being cut up [with a sword] at a party, ” which was intended as a joke and was inappropriate.

[Id.] Plaintiff claims that these statements “are largely false, incomplete, and misleading.” [Id. at ¶ 16.]

         Plaintiff did say that the touching of her bra was done for medical reasons and not for any sexual purpose. [Id.] Plaintiff told Koronkiewicz that the touching (done fully clothed) was a prophylactic for breast cancer and had a scientific medical basis. [Id.] Plaintiff informed Koronkiewicz that a lot of female students at MCC were doing this without getting in trouble, so she thought it was okay. [Id.] Plaintiff also told Koronkiewicz that she asked other student's consent to see photos of her bondage “gear, ” but not photos of her wearing the gear. [Id.] She explained to Koronkiewicz that this inquiry was an attempt, sometimes successful, to gain consent. [Id.] Plaintiff did not show pictures of her gear to students who denied consent. [Id.] Plaintiff did report that people in the student lounge told her that she might be unethical, but she disagreed with that evaluation. [Id.] Plaintiff did not tell Koronkiewicz that she did not understand consent. [Id.] Plaintiff did, however, tell Koronkiewicz that she did not understand revocation of consent if it was not verbal or written. [Id.] Plaintiff did not admit to knowing that her conduct made people uncomfortable without them saying so. [Id.] Rather, Plaintiff acknowledged that Koronkiewicz told her this at the interview. [Id.] Finally, Plaintiff did not tell Koronkiewicz that she had discussed cutting up a student with a sword. [Id.] Rather, Plaintiff informed Koronkiewicz that she had responded to such comments made by another student “by inquiring about that student's name (over text) to express incredulity and disapproval.” [Id.]

         Two days after the May 13, 2015 interview, Koronokiewicz rejected Plaintiff's request to consult with a person with knowledge of her disability and did not propose any alternative. [Id. at ¶ 19.] Between May 13, 2015 and June 3, 2015, Koronkiewicz did not give Plaintiff any notice or warning that she was facing charges of harassment or of violating any other provisions of the Code. [Id. at ¶ 17.] On June 3, 2015, Koronkiewicz issued an official Sanctions Letter stating that after a “due process meeting” with [Plaintiff] and others, an MCC “disciplinary body” including Defendants Flecia Thomas and Juletta Patrick determined that Plaintiff had violated the harassment provision of the Code. [Id. at ¶ 20.] The letter indicated that this decision was based on Plaintiff's admission that she had (1) touched her bra/breasts in a sexually provocative way, (2) laid on and cuddled with other students without their consent, and (3) asked others to see pictures of Plaintiff in bondage. [Id. at ¶ 20.] Plaintiff alleges that she “always obtained express consent for any such interaction, either orally or writing or by text.” [Id. at ¶ 30.] But Plaintiff does not explain what is meant by “any such interaction.” Plaintiff further alleges that she never laid on or cuddled with other students without their express consent. [Id. at ¶ 21.] The disciplinary body did not conclude that Plaintiff had engaged in sexual harassment as defined in the Code.[1] [Id. at ¶ 22.] Nor did the disciplinary body conclude that Plaintiff had harassed anyone because of sex or on the basis of any other protected group membership or characteristic. [Id.]

         The Sanctions Letter indicated that MCC would be imposing the following consequences on Plaintiff:

• A one-year suspension and ban from MCC, starting on June 11, 2017.[2]
• A requirement that Plaintiff provide a re-enrollment application and a personal statement discussing (at least in part) certain issues regarding sexual harassment.
• A requirement that Plaintiff undergo sexual harassment training.

[Id. at ¶ 23.] Plaintiff was advised that she could file a notice of intent to appeal by June 17, 2015, which she did. [Id.] Sometime before June 17, 2015, Plaintiff requested that counsel be allowed to speak on her behalf at the appeals hearing that was to be scheduled. [Id. at ¶ 24.] This request was rejected on June 18, 2015. [Id. at ¶ 24.] However, Plaintiff was allowed to have a non-attorney advisor speak on her behalf. [Id.]

         On June 24, 2015, Koronkiewicz gave Plaintiff a letter (dated June 23, 3015) setting the hearing for July 29, 2015. [Id. at ¶ 25.] The letter indicated that Plaintiff had to provide a witness list by July 1, 2015. [Id.] The letter further indicated that Plaintiff had to provide an oral statement and copies of all documents Plaintiff was submitting in support of her appeal by July 15, 2015. [Id.] Plaintiff was banned from campus, so she could only gather materials remotely. [Id.] She did not make the 9:00 a.m. deadline. [Id.] ¶ 9:30 a.m. on July 15, 2015, Koronkiewicz emailed Plaintiff to inform her that the deadline had passed. [Id.] Plaintiff wrote back to say that her witnesses had not been contacted and that she therefore requested an extension. [Id.] Koronkiewicz replied that she had spoken to one of the witnesses in May and that the statements of three people would be included in MCC's record of evidence (the “Packet”).[3] These witnesses would not be allowed to testify. [Id.]

         The hearing was rescheduled for Aug. 12, 2015. [Id.] MCC gave Plaintiff the Packet containing the case against her on Aug. 10, 2015, two days before the appellate hearing. [Id. at ¶ 26.] The Packet contained witness statements from the initial disciplinary proceedings. [Id. at ¶ 27.] It also contained two interviews “written” by Koronkiewicz, on July 15, 2015. [Id.] In these written interviews, one witness stated that they believed that Plaintiff “acts appropriately” and that they had never witnessed any nonconsensual touching. [Id.] The other witness stated that Plaintiff stopped touching and apologized when asked to cease physical contact that had become unwelcome. [Id.] This witness further stated that other students had said that Plaintiff's touching and comments made them uncomfortable, but they had not told her so. [Id.] The witness thought that these people gave Plaintiff nonverbal cues that Plaintiff did not understand because of her autism. [Id. at ΒΆ 27.] The Packet also contained a record of the disciplinary incidents ...


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