United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
M. Dow, Jr., United States District Judge.
matter is before the Court on Defendants' motion to
dismiss . 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.
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.
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”).
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
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.]
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
• 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
[Id.] Plaintiff claims that these statements
“are largely false, incomplete, and misleading.”
[Id. at ¶ 16.]
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.]
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. [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.]
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.
• 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
[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.]
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”). These witnesses would not be allowed to
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 ¶ 27.] The
Packet also contained a record of the disciplinary incidents