United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
Molloy alleges in this suit that Acero Charter Schools, Inc.,
Santiago School Principal Melissa Sweazy, and staffing
agencies HealthPro Heritage, LLC and Wallace Management
Corporation illegally retaliated against and terminated her
from her teaching job for voicing concerns about violations
of disability-related laws and for refusing to participate in
activities that would violate those laws. Doc. 1. The
complaint asserts claims under § 504 of the
Rehabilitation Act, 29 U.S.C. § 794(a), Title II of the
Americans with Disabilities Act of 1990 (“ADA”),
42 U.S.C. § 12101 et seq., 42 U.S.C. §
1983, the Illinois Whistleblower Act (“IWA”), 740
ILCS 174/1 et seq., and common law retaliatory
discharge. Acero and Sweazy move under Civil Rule 12(b)(6) to
dismiss the claims against them. Doc. 27. Their motion is
resolving a Rule 12(b)(6) motion, the court assumes the truth
of the operative complaint's well-pleaded factual
allegations, though not its legal conclusions. See Zahn
v. N. Am. Power & Gas, LLC, 815 F.3d 1082, 1087 (7th
Cir. 2016). The court must also consider “documents
attached to the complaint, documents that are critical to the
complaint and referred to in it, and information that is
subject to proper judicial notice, ” along with
additional facts set forth in Molloy's brief opposing
dismissal, so long as those additional facts “are
consistent with the pleadings.” Phillips v.
Prudential Ins. Co. of Am., 714 F.3d 1017, 1020 (7th
Cir. 2013) (internal quotation marks omitted). The facts are
set forth as favorably to Molloy as those materials allow.
See Pierce v. Zoetis, Inc., 818 F.3d 274, 277 (7th
Cir. 2016). In setting forth the facts at the pleading stage,
the court does not vouch for their accuracy. See Goldberg
v. United States, 881 F.3d 529, 531 (7th Cir. 2018).
and Wallace are staffing agencies that place educational
professionals in schools. Doc. 1 at ¶ 10. One or both
agencies arranged an interview of Molloy by Acero's
Special Education Director. Id. at ¶ 17. Molloy
was hired the next day and assigned as a FullTime Reading
Specialist at Santiago School, ibid., a public
charter school operated by Acero, id. at ¶ 12.
Molloy began work on March 5, 2018. Id. at ¶
thereafter, Molloy identified various practices at Santiago
School that, she believed, violated the Individuals with
Disabilities Education Act (“IDEA”), 20 U.S.C.
§ 1400 et seq., and other laws requiring public
educators “to identify students in need of special
education, follow prescribed processes when diagnosing a
student with a specific learning disability, and once
identified, provide those qualifying students with an
Individual Education Plan or ‘IEP.'”
Id. at ¶ 21. Specifically, Molloy believed that
Acero was failing to follow the “multi-tiered system of
supports, ” or “MTSS, ” system that
Santiago School implemented to comply with its legal
obligations. In Molloy's understanding, federal and
Illinois law require public schools to follow an MTSS
approach to assessing, diagnosing, and developing
interventions for students who might have learning
disabilities. Id. at ¶ 22. MTSS requires that
students be sorted into tiers based on their educational
needs, with Tier 1 being a “general education program,
” Tier 2 consisting of “targeted intervention or
students not making adequate progress in Tier 1, ” and
Tier 3 adding “intensive, supplemental, individualized
intervention for students not responding to Tier 2
instruction.” Id. at ¶ 23.
on available data, Molloy determined that certain Santiago
School students needed appropriate MTSS interventions and
instruction. Id. at ¶¶ 28-29. But when
Molloy suggested interventions to Sweazy and teacher
Elizabeth Kruger, she was told that they were unnecessary.
Ibid. Molloy then immediately began voicing concerns
that the school's refusal to conduct appropriate
interventions violated state and federal law. Id. at
also asked that she be allowed to conduct intensive
interventions for Tier 3 students in seventh and eighth
grade, and Sweazy and Kruger again refused her request.
Id. at ¶¶ 31-32. Once again convinced that
the school's refusal violated the law, Molloy began
reporting her concerns to several teachers and
administrators, including Sweazy, Santiago Case Manager and
Resource Teacher Amanda Haas, Santiago Instructional Coach
Kate Calhoun, Santiago Case Manager and Resource Teacher
Rebecca Gasser, and Acero Section 504/Title II Coordinator
Bridgette Sprovieri. Id. at ¶¶ 33, 35, 37.
Molloy also raised her concerns outside Acero and Santiago
School-to Caroline Morrison, her supervisor at
HealthPro/Wallace. Id. at ¶ 34. In addition to
speaking out about her concerns, Molloy refused to conduct
interventions that she believed were improper under the law.
Id. at ¶¶ 35-36.
result of her actions, Molloy was subjected to retaliatory
measures, including verbal reprimands and discipline,
exclusion from meetings, heightened scrutiny related to
scheduling and hours, and demeaning comments. Id. at
¶ 38. Although Molloy was excluded from IEP eligibility
meetings-which, given her role, she ordinarily would have
attended-she nonetheless attended an April 11, 2018 meeting.
Id. at ¶¶ 39-40. At that meeting, Molloy
said that the student under discussion had been improperly
diagnosed with a specific learning disability and did not
meet the legal requirements to receive an IEP. Id.
at ¶ 41. In response, teachers and administrators
present expressed their disapproval at her participation and
April 13, 2018, Molloy was fired due to her reporting of
activity she deemed unlawful and her refusal to participate
in educational activities she deemed unlawful. Id.
at ¶ 43.
Section 504 and ADA Claims
ADA's antiretaliation provision states, in relevant part:
“No person shall discriminate against any individual
because such individual has opposed any act or practice made
unlawful by this chapter.” Rodrigo v. Carle Found.
Hosp., 879 F.3d 236, 243 (7th Cir. 2018) (emphasis
omitted) (quoting 42 U.S.C. § 12203(a)). The
Rehabilitation Act incorporates the ADA's substantive
standards for retaliation claims. See 29 U.S.C.
§ 794(d). To state a retaliation claim under either
statute, a plaintiff must allege that: “(1) she engaged
in a statutorily protected activity; (2) she suffered an
adverse employment action; and (3) there is a causal
connection between the two.” Guzman v. Brown
Cnty., 884 F.3d 633, 642 (7th Cir. 2018); see also
Anderson v. Donahoe, 699 F.3d 989, 995 (7th Cir. 2012)
(setting forth the same requirements for a retaliation claim
under the Rehabilitation Act).
“act or practice” opposed by a plaintiff need not
actually violate the ADA or Rehabilitation Act for the
plaintiff's complaint about that act or practice to be
covered by their antiretaliation provisions. Rather, the
antiretaliation provisions apply so long as the plaintiff
acted “in good faith and with a reasonable and sincere
belief that he or she is opposing unlawful
discrimination.” Talanda v. KFC Nat'l Mgmt.
Co., 140 F.3d 1090, 1096 (7th Cir. 1998) (emphasis
omitted); see also ibid. (“[I]n retaliation
cases … under … the ADA, it is good faith and
reasonableness, not the fact of discrimination, that is the
critical inquiry.”) (internal quotation marks omitted).
Nor must the plaintiff have a disability to bring a
retaliation claim, as the antiretaliation provisions plainly
bar discrimination against “any
individual”-and not just against individuals with
disabilities-for opposing unlawful acts or practices. 42
U.S.C. § 12203(a) (emphasis added); see Wilbanks v.
Ypsilanti Cmty. Schs., 742 Fed.Appx. 84, 87 (6th Cir.
2018) (“The anti-retaliation provisions of the ADA and
[Rehabilitation Act] grant standing [sic] to non-disabled
persons who are retaliated against for attempting to protect
the rights of the disabled.”); Barker v. Riverside
Cnty. Office of Educ., 584 F.3d 821, 826-28 (9th Cir.
2009) (holding that a special education teacher who
“engaged in activities opposing her school's
special education policies that allegedly violated the ADA
… had standing [sic] to pursue her claim under [the
ADA's retaliation] clause”); Weber v. Cranston
Sch. Comm., 212 F.3d 41, 48 (1st Cir. 2000) (holding
that a mother stated a Rehabilitation Act retaliation claim