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Molloy v. Acero Charter Schools, Inc.

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

October 10, 2019

MARGARET MOLLOY, Plaintiff,
v.
ACERO CHARTER SCHOOLS, INC., HEALTHPRO HERITAGE, LLC, WALLACE MANAGEMENT CORPORATION, and MELISSA SWEAZY, Defendants.

          MEMORANDUM OPINION AND ORDER

          GARY FEINERMAN JUDGE

         Margaret 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 denied.

         Background

         In 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).

         HealthPro 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 ¶ 18.

         Shortly 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.

         Based 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 ¶ 29.

         Molloy 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.

         As a 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 suggestion. Ibid.

         On 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.

         Discussion

         I. Section 504 and ADA Claims

         The 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).

         The “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 ...


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