Manos v. Board of Education of Villa Grove Community Unit School District #302 et al
Filing
50
OPINION: Plaintiff's Motion for Partial Summary Judgment (d/e 38) is DENIED. Defendants Motion for Summary Judgment (d/e 39) is GRANTED IN PART and DENIED IN PART. Genuine issues of material fact preclude summary judgment on Counts I, II, III, and VI. Defendants are entitled to summary judgment on Counts IV, V, and VII. The individual Defendants are entitled to qualified immunity on Counts I and II. This matter is set for a Final Pretrial Conference on March 2, 2018 at 1:30 p.m. and a Jur y Trial on March 20, 2018 at 9:00 a.m. in Courtroom 1 in Springfield before U.S. District Judge Sue E. Myerscough. This trial date is not a firm date. The Court sets civil trials on a trailing trial calendar, meaning a civil trial is subject to being continued if criminal trial or a trial in an older civil case is scheduled. The parties are again advised of their option to consent to the Magistrate Judge, who would be able to give them a firm trial date. (SEE WRITTEN OPINION.) Entered by Judge Sue E. Myerscough on 12/13/2017. (GL, ilcd)
E-FILED
Wednesday, 13 December, 2017 07:47:24 AM
Clerk, U.S. District Court, ILCD
IN THE UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
DR. MARY ANN MANOS,
)
)
Plaintiff,
)
)
v.
)
)
BOARD OF EDUCATION OF VILLA )
GROVE COMMUNITY UNIT
)
SCHOOL DISTRICT #302, JIM
)
CLARK, JIM KESTNER, CAROL
)
EZELL, KERRY CHEELY,
)
CASSANDRA EVERSOLE-GUNTER, )
CHARLES MITSDARFER, and
)
TIMOTHY SPANNAGEL,
)
)
Defendants.
)
No. 2:15-CV-2220
OPINION
SUE E. MYERSCOUGH, U.S. District Judge.
In July 2015, Defendant Board of Education of Villa Grove
Community Unit School District #302, comprised of Defendants
Jim Clark, Jim Kestner, Carol Ezell, Kerry Cheely, Cassandra
Eversole-Gunter, Charles Mitsdarfer, and Timothy Spannagel,
terminated Plaintiff Dr. Mary Ann Manos from her position as
Superintendent. Plaintiff filed suit alleging Defendants deprived
her of a property interest in her employment and a liberty interest
Page 1 of 53
in her occupation in violation of the Fourteenth Amendment of the
U.S. Constitution and discriminated against her because of her
gender in violation of Title VII of the Civil Rights Act of 1964
(Counts I, II, and VII). Plaintiff also brought state law claims for
breach of contract, intentional infliction of emotional distress,
defamation per se, and trespass to chattels (Counts III, IV, V, and
VI).
The parties have filed cross-motions for summary judgment.
Plaintiff seeks summary judgment on the property and liberty
interest claims, Counts I and II. Defendants seek summary
judgment on all claims.
Plaintiff’s Motion for Partial Summary Judgment (d/e 38) is
DENIED. Defendants’ Motion for Summary Judgment (d/e 39) is
GRANTED IN PART and DENIED IN PART. Genuine issues of
material fact preclude summary judgment on Counts I, II, III, and
VI. The Court finds, however, that the individual Defendants are
entitled to qualified immunity on Counts I and II. Defendants are
awarded summary judgment on Counts IV, V, and VII.
Page 2 of 53
I. FACTS
In 2012, the Villa Grove Community Unit School District
#302 hired Plaintiff to serve as Superintendent under a three-year
employment contract (Contract) beginning July 1, 2013 through
June 30, 2016. Paragraph 11 of the Contract provided the
following regarding discharge:
11. Discharge For Cause. Throughout the term of this
Contract, the Superintendent shall be subject to
discharge for just cause provided, however, the Board
shall not arbitrarily or capriciously call for dismissal and
the Superintendent shall have the right to service of
written charges, notice of hearing and a hearing before
the Board. If the Superintendent chooses to be
accompanied by counsel at such hearing, the
Superintendent shall pay all such personal expenses.
Failure to comply with the terms and conditions of this
Contract shall also be sufficient cause for purposes of
discharge as provided in this Contract.
Plaintiff began her term as Superintendent on July 1, 2013.
Plaintiff also served as the high school principal for the 2013-2014
school year for additional pay.
Plaintiff’s salary as Superintendent was $115,000 per year,
which was less than her predecessor, Dr. Steven Poznic, earned.
The parties do not indicate how much Dr. Poznic earned. The
parties agree, however, that Dr. Poznic was a longstanding District
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employee who received a retirement incentive that increased his
salary prior to retirement. The interim Superintendent through
June 2017, Mr. Norm Tracy, who was hired after Plaintiff’s
termination, earned $70,000 per year.
In early 2014, the Board evaluated Plaintiff’s performance to
date, and the evaluations were universally positive. In March
2014, the District approved the extension of Plaintiff’s contract by
one year, through June 30, 2017.
Defendants assert, and Plaintiff disputes, that Board
members began to hear complaints from staff about the extension
of Plaintiff’s contract.1 Board Member Jim Clark commenced an
investigation regarding the allegations. Clark interviewed several
staff members and purportedly received negative feedback about
Plaintiff.
Plaintiff objects to the admission of statements made by individuals to
individual Board members as hearsay. However, the Court considers the
statements not for their truth but to show their effect on the listener and to
explain the steps the listener took next. See United State v. Robinzine, 80 F.
3d 246, 252 (7th Cir. 1996); Vallabhapurapu v. First Nat’l Bank of Chi., 998
F. Supp. 906, 909 n.3 (1998) (finding that the plaintiff’s subordinates’
statements to the plaintiff’s supervisor were not introduced for their truth but
to show the effect of the statements on the supervisor’s beliefs for purposes of
the Court’s evaluation of the plaintiff’s employment discrimination claim).
1
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In June 2014, Clark shared his findings with the Board. At a
special Board meeting on July 10, 2014, the Board provided
Plaintiff with a letter outlining the Board’s concerns. The concerns
included staff complaints about Plaintiff, as well as five instances
when the Board felt misled by Plaintiff. (Some of these concerns
are the same as the ones raised in support of Plaintiff’s
termination.) The letter included a section titled, “Board
Expectations,” that outlined the Board’s expectations for Plaintiff
and included changes in how she should handle matters. In
response, Plaintiff stated that the issues were not her issues but
rather blamed the District’s staff. She also issued a written
rebuttal and told the Board that she believed the letter violated
Board policies. Plaintiff was not provided with the names of the
individuals who were making allegations against her.
In October 2014, the district bookkeeper, Shirley Badman,
and the assistant bookkeeper, Chris Mayhall, met with Board
President Steve Douglas and Board member Clark about concerns
they had about the District’s finances, morale in the District, and
whether Plaintiff was following auditor procedures. In December
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2014, more individuals purportedly spoke to Board members about
additional concerns with Plaintiff.
In February 2015, Clark met with Plaintiff to share the
concerns staff members were raising, although Plaintiff asserts
that Clark did not address any specific complaints with Plaintiff.
Defendants contend that Board members continued to receive
complaints about Plaintiff from staff and parents.
In April 2015, Plaintiff’s Contract was amended to provide
Plaintiff with five additional vacation days per year. The remaining
terms of the Contract remained in full force and effect.
On May 4, 2015, Clark became President of the School Board,
replacing outgoing President, Steve Douglas. On or about June
18, 2015, Clark scheduled a closed-session meeting for June 23,
2015 and directed Plaintiff to attend. According to Plaintiff, Clark
did not advise Plaintiff of the topic of the meeting. Plaintiff told
Clark she could not attend because she had outpatient surgery
scheduled for June 22, 2015.
On June 23, 2015, Clark emailed Plaintiff a letter stating that
Clark would, at that evening’s special Board meeting, “recommend
to the Board of Education that [Plaintiff] be dismissed as
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Superintendent . . . and for approval of [his] decision to place
[Plaintiff] on paid suspension pending a formal dismissal hearing.”
By way of the letter, Clark placed Plaintiff on suspension with pay
while the Board considered her dismissal. Clark directed Plaintiff
to turn over all District property, remain off school property, have
no contact with District employees, and not discuss her
employment status or any District matter with any staff member or
member of the public.
Clark attached to the letter a Bill of Particulars containing 33
allegations (really 32 allegations because there is no number 3)
against Plaintiff. The Bill of Particulars included allegations that
Plaintiff failed to accurately prepare the annual budget and was
fiscally irresponsible regarding several items, including the
purchase of weight lifting equipment, air conditioning
improvements, Rural Education Achievement Grant Expenditures,
and Qualified Zone Academy Bonds.
In the letter, Clark stated that he intended to ask the Board
to adopt the charges as the basis of Plaintiff’s suspension with pay
and to set the matter for a formal dismissal hearing before the
Board. The letter also advised Plaintiff that she “may appear at the
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Board of Education to answer the charges against [her] and may
have counsel present. At the hearing, the Board of Education shall
consider [Clark’s] recommendation to dismiss [Plaintiff] from [her]
position of employment.”
Defendants note that Plaintiff testified at her deposition that
she responded to the Bill of Particulars. The Court was unable to
find the response in the summary judgment record. Plaintiff
states, in her Reply (d/e 47), that there is no evidence that
Plaintiff’s attorney submitted a response to the Board or to Clark
or that the Board considered any such response by Plaintiff during
the hearing.
Plaintiff’s attorney, Gerald Smith, attended the June 23, 2015
special meeting. At the meeting, the Board discussed concerns
about the District’s finances and Plaintiff’s relationship with the
Board and staff. The Board decided to proceed with the
suspension of Plaintiff with pay and a hearing to determine if she
should remain employed as Superintendent. During the closed
session of the hearing, the Board Secretary wrote that the new
superintendent’s start date would be “the day after [Plaintiff] is
terminated.”
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On June 25, 2015, Smith notified the attorney for the School
Board, Christopher Miller, that many of the allegations in the Bill
of Particulars were vague and lacked sufficient detail to provide a
defense. Smith also stated that he would request a continuance at
the conclusion of the Board’s evidence in order to prepare
Plaintiff’s response and/or defense to each allegation presented.
Plaintiff’s discharge hearing commenced on July 13, 2013.
Immediately prior to the hearing, Plaintiff and her attorney
received 27 separate exhibits the Board’s attorney planned to
present during the hearing, which amounted to over 112 pages of
evidence.
At the beginning of the hearing, Clark read a statement that
Plaintiff would be provided an opportunity to present evidence and
all witnesses on her behalf following the presentation of the
Board’s evidence:
Before the Board can determine whether Mary Ann
Manos has, in fact, engaged in conduct that constitutes
just cause to terminate her employment contract, it
must hear the evidence.
This hearing is designed to protect her due process
rights regarding the presentation of that evidence.
***
Page 9 of 53
To begin these proceedings, Mr. Miller will present
the charges against Mary Ann Manos and then present
information and evidence supporting those charges in
the form of written documents and the testimony of
witnesses. The employee will be given an opportunity to
cross-examine any witnesses presented and to challenge
any of the written evidence entered.
Following the presentation of just cause for
dismissal, the employee will have an opportunity to
make a case against such recommended action. The
employee may present evidence of her own, oral or
written, and may call witnesses to testify. The Board
will be given an opportunity to cross-examine any
witnesses presented by the employee and to challenge
any of the written evidence entered.
Very early in the proceedings Plaintiff’s attorney, Smith, objected to
the Board’s attorney calling witnesses about whom Plaintiff and
Smith knew nothing. Smith also objected to the evidence not being
disclosed until immediately prior to the hearing.
Miller, the Board’s attorney, spent over six hours presenting
12 witnesses, including Clark, and elicited testimony from all of
the members of the Board. Plaintiff asserts, but Defendants
dispute, that most of the Board’s evidence consisted of evidence
Plaintiff was learning for the first time. Plaintiff’s attorney, Mr.
Smith, cross-examined the witnesses.
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The Board’s attorney concluded the presentation of evidence
at approximately 12:30 a.m. on July 14, 2015. The following
exchange occurred:
MR. MILLER: So, I have got no closing statement; we
will rest on the testimony and the exhibits. The Board is
going to deliberate. Do you have anything else to
present?
MR. SMITH: Well, as a closing statement, I don’t think
any of the evidence that was presented here really
indicates that there was any intent on her part to
deceive or defraud.
After making a closing statement, Mr. Smith then stated:
MR. SMITH: * * * The fact that we didn’t get access to
any of this information until tonight as it was being
presented, we didn’t have an opportunity to prepare an
accurate or an adequate defense, so there are due
process issues that will be addressed at a later time, too.
We respect your time and we won’t hang on any longer.
We will let you deliberate. I bet there’s no one
downstairs anymore, but we will be downstairs.
MR. MILLER: Thank you.
MR. CLARK: Thank you.
MR. SMITH: There is one thing. I would like to
request from the Board a continuation or a continuance
so that we can have adequate time to digest this and to
prepare a defense.
MR. MILLER: Until when?
MR. SMITH: One week would be fine.
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MR. MILLER: We will discuss it. Well, I want on
the record, what is it that you lack?
MR. SMITH: We did not have any time—
MR. MILLER: Well, we understand that, but how
did that prevent you from having due process?
MR. SMITH: We did not have any time to prepare a
defense. We didn’t know the actual—and of the
evidence that was going to be presented, very little of the
evidence, the details, the—
MR. MILLER: You got the Bill of Particulars, right?
MR. SMITH: The Bill of Particulars were weak.
MR. MILLER: You are not entitled to the Board’s
evidence as a matter of –well, we will litigate that.
MR. SMITH: Yeah. Thank you.
MR. CLARK: Thank you.
At 2:04 a.m. on July 14, 2015, the Board unanimously
recommended that Plaintiff be terminated for cause. The Board
adopted a “Resolution Reference the Discharge for Just Cause of
Mary Ann Manos” (Discharge Resolution) which contained 28
paragraphs supporting discharge. Paragraphs 27 and 28 alleged
grounds that had not been included in the Bill of Particulars: that
Plaintiff failed to notify the Board in a timely manner of the
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District’s obligations under Section 9 of the Prevailing Wage Act
and violated the directives given to her on June 23, 2015 that she
not have contact with any member of the public by speaking with
another District employee and the local media.
The News-Gazette published an article that was posted on the
newspaper’s website on July 14, 2015. The article contained a link
to a PDF of the Discharge Resolution specifying the Board’s
complaints about Plaintiff.
Plaintiff claims she has been unable to find employment in
her profession as a result of the information released by the Board
regarding her termination. Plaintiff testified she applied for 171
professional positions for which she was qualified. She has had
two interviews but was not hired for either position.
On August 5, 2015, Plaintiff filed a complaint with the Illinois
Department of Human Rights that was cross-filed with the Equal
Employment Opportunity Commission (EEOC). Plaintiff alleged
that the School District discriminated against her because of her
age, disability, and gender. Plaintiff asserted that she was treated
differently than her similarly situated co-workers. Plaintiff also
asserted that other individuals who were not members of Plaintiff’s
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protected class with similar contributions and achievements were
not terminated under similar circumstances by the School District.
On April 29, 2016, the EEOC issued a Right to Sue letter.
In the summary judgment briefing, Plaintiff has presented
evidence to refute what she deems are false accusations against
her. For example, she has submitted the report of Roger Stone,
who is a certified public accountant and certified fraud examiner.
In Mr. Stone’s opinion, he concludes that Plaintiff handled the
budget for the School District in an appropriate manner,
appropriately informed the Board of the budget and other financial
matters on a timely basis, and handled various matters, including
the weight lifting equipment, air conditioning improvements, Rural
Education Achievement Grant Expenditures, and Qualified Zone
Academy Bonds appropriately.
Finally, one of Plaintiff’s claims is a claim for trespass to
chattels. Following Plaintiff’s suspension, one or more USB drives
were found in Plaintiff’s desk. School Principal Steve Killion
reviewed the USB drives to ensure that they did not contain
student or confidential information. The USB drives were returned
to Plaintiff the night she was terminated.
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Plaintiff testified that the USB drives contained pictures,
Plaintiff’s resume, her vitae, articles she had written, and Word
documents that had value only to her. Many files were deleted
from the USB drives but Plaintiff’s attorney “had the ability to
recover any files that had been deleted.” Manos Dep. at 62 (July
29, 2016) (d/e 41-2). Plaintiff noticed three documents were
altered in that all of her personal references were removed from her
vitae and resume. Pictures and videos were also missing, but she
did not know which ones, other than a video of the birth of her first
grandchild, which was recouped. The pictures and videos were not
stored in any other location.
II. LEGAL STANDARD
Summary judgment is proper if the movant shows that no
genuine dispute exists as to any material fact and that the movant
is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a).
The movant bears the initial responsibility of informing the court of
the basis for the motion and identifying the evidence the movant
believes demonstrates the absence of a genuine issue of material
fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). No
genuine issue of material fact exists if a reasonable jury could not
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find in favor of the nonmoving party. Brewer v. Bd. of Trs. of the
Univ. of Ill., 479 F.3d 908, 915 (7th Cir. 2007). When ruling on a
motion for summary judgment, the court must consider the facts
in the light most favorable to the nonmoving party, drawing all
reasonable inferences in the nonmoving party's favor. Blasius v.
Angel Auto., Inc., 839 F.3d 639, 644 (7th Cir. 2016).
In this case, the parties filed cross-motions for summary
judgment. Therefore, this Court must view all facts and draw all
reasonable inferences in the light most favorable to the Plaintiff
when reviewing Defendants’ Motion and in the light most favorable
to the Defendants when reviewing Plaintiff=s Motion. See
Gazarkiewicz v. Town of Kingsford Heights, Ind., 359 F.3d 933,
939 (7th Cir. 2004).
III. ANALYSIS
A.
The Motions for Summary Judgment on Count I are
Denied
In Count I, brought pursuant to 42 U.S.C. § 1983, Plaintiff
alleges that she was denied her right to receive a fair termination
hearing because Defendants did not allow her adequate notice of
the charges or a fair opportunity to be heard, including the
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opportunity to present evidence, call witnesses, and otherwise
testify on her own behalf.
The Due Process Clause of the Fourteenth Amendment
prohibits a State from depriving any person of “life, liberty, or
property without due process of law.” U.S. Const. amend. XIV, § 1.
To succeed on her claim, Plaintiff must prove that a person acting
under color of law deprived her of a cognizable property interest
without due process of law. See Hudson v. City of Chi., 374 F.3d
554, 559 (7th Cir. 2004). The parties do not appear to dispute, for
purposes of summary judgment, that Plaintiff had a cognizable
property interest in her employment as Superintendent because
she could only be fired for good cause. Gilbert v. Homar, 520 U.S.
924, 928-29 (1997) (noting that a public employee who can only be
fired for good cause has a constitutionally protected interest in her
tenure and cannot be terminated without due process).
Due process requires the opportunity to be heard at a
meaningful time and in a meaningful manner. See Carmody v. Bd.
of Trs. of Univ. of Ill., 747 F.3d 470, 474 (7th Cir. 2014).
Generally, a court determines the process due and when the
process is due by balancing the three factors set forth in Mathews
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v. Eldridge, 424 U.S. 319, 335 (1976): (1) the private interest at
stake; (2) the risk of erroneous deprivation and the value, if any, of
additional safeguards; and (3) the government’s countervailing
interests. Due process “is flexible and requires only such
procedural protections as the particular situation demands.”
Riano v. McDonald, 833 F.3d 830, 834 (7th Cir. 2016) (citation and
quotation marks omitted). While the basic rights guaranteed by
constitutional due process are notice and an opportunity to be
heard, more elaborate procedural rights, such as the right to
present evidence, the right to confront adverse witnesses, and the
right to be represented by counsel, may apply in cases where vital
private interests are at stake. Simpson v. Brown Cnty., 860 F.3d
1001, 1008 (7th Cir. 2017).
In addition, the extent and nature of the process due prior to
termination depends on the adequacy of any available posttermination remedy that was available. Carmody, 747 F.3d at 474.
When a public employee has a constitutionally protected interest
in her tenure and has a full opportunity to contest her termination
in a post-termination hearing, she need only be provided with (1)
oral or written notice of the charges; (2) an explanation of the
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employer’s evidence; and (3) an opportunity for the employee to tell
her side of the story prior to the termination. Id. at 475. Even
where an employee is afforded a post-termination hearing, “a
meaningful opportunity to be heard before the employer decides on
termination is a critical protection.” Carmody, 747 F.3d at 475
(recognizing that a post-termination opportunity to change an
employer’s mind is less meaningful). “The general constitutional
standard is that an employee with a property interest is entitled to
notice of the employer’s reasons and a meaningful opportunity to
respond before the employer decides to terminate the
employment.” Id. at 476 (emphasis in original).
Defendants argue that Plaintiff had a post-termination
remedy available to her and, therefore, she was only entitled to
notice of the charges, an explanation of the Board’s evidence, and
an opportunity to tell her side of the story, which Defendants claim
Plaintiff was afforded. The Court disagrees with Defendants’
assertion that Plaintiff had a post-termination remedy available to
her that provided her a full opportunity to contest her termination.
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Defendants argue that a common law writ of certiorari
provides an adequate post-termination remedy.2 A common law
writ of certiorari is a means by which a party can appeal or obtain
limited review over an action by a court or other tribunal exercising
quasi-judicial functions. Hartley v. Will Cnty. Bd. of Review, 106
Ill. App. 3d 950, 954 (1982). While some courts have found that
the common law writ of certiorari constitutes an adequate posttermination remedy in an employment termination case (see
Fostiak v. Bryon Cmty. Unit Sch. Dist. 226, No. 11 C 50231, 2012
WL 6727535, at *2 (N.D. Ill. Dec. 27, 2012)), this Court disagrees.
Review on a writ of certiorari is restricted to the record.
Kasak v. Vill. of Bedford Park, 552 F. Supp. 2d 787, 793 (N.D. Ill.
2008). Therefore, such a procedure would not have provided
Plaintiff the opportunity to refute the charges. In addition, Plaintiff
had a present entitlement to her position, and a writ of certiorari
does not meet the element of promptness. See, e.g., Baird v. Bd. of
Educ. for Warren Cmty. Unit Sch. Dist. No. 205, 389 F.3d 685,
Plaintiff was not entitled to review under the Illinois Administrative Review
Law. Pursuant to 105 ILCS 5/10-23.8, a Superintendent, by accepting a
multi-year contract, waives all rights granted under Sections 24-11 through
24-16 of the School Code, which includes the provision providing for judicial
review. See 105 ILCS 5/24-16.
2
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692 (7th Cir. 2004) (concluding that a breach of contract action
was not an adequate post-termination remedy for a superintendent
who was terminated after a limited pre-termination hearing
because he had a present entitlement to the position and a breach
of contract action did not satisfy the requirement of promptness).
Even if Plaintiff were afforded a post-termination hearing by
way of a writ of certiorari, disputed facts preclude the Court from
finding that Plaintiff had a meaningful opportunity to respond
before the Board terminated her employment. Taking the facts in
the light most favorable to Plaintiff and drawing all reasonable
inferences in her favor, Defendants purported to give Plaintiff an
opportunity to respond but that opportunity was illusory. At the
conclusion of the Board’s evidence, the Board’s attorney indicated
that they Board would deliberate, and then asked Plaintiff attorney
if he had “anything else to present.” It was approximately 12:30
a.m. and the Board’s attorney had presented approximately six
hours of witness testimony. Plaintiff’s attorney requested a
continuance before and after the hearing, and that request was
never specifically denied. The parties also dispute whether Plaintiff
responded in writing to the charges. Finally, Plaintiff has pointed
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to evidence suggesting that the Board had made its decision even
before the hearing, such as the reference to when the new
superintendent would begin working. See, e.g., Ryan v. Ill. Dep’t of
Children & Family Servs., 185 F. 3d 751, 72 (7th Cir. 1999) (“A
plaintiff who can introduce evidence that the decision has already
been made and any hearing would be a sham is entitled to go
forward with a procedural due process claim.”).
Plaintiff also moves for summary judgment, but genuine
issues of material fact preclude summary judgment in Plaintiff’s
favor as well. Viewing the facts in the light most favorable to
Defendants and drawing all reasonable inferences in their favor,
Defendants did afford Plaintiff a meaningful opportunity to
respond to the charges. Moreover, Defendants assert that the
reference to a new Superintendent’s start date was conditional and
simply referred to a plan of action if the Board terminated Plaintiff.
Defendants also argue that the Contract set forth all of the
process Plaintiff was due--notice and a hearing before the Board—
and that Plaintiff received such process. See Batagiannis v. W.
Lafayette Cmty. Sch. Corp., 454 F.3d 738, 741 (7th Cir. 2006)
(noting that parties to a contract can waive “entitlements or
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negotiate in advance the details of the hearings they will receive”).
However, Defendants seem to agree that the pre-termination
hearing intended by the Contract included the opportunity for
Plaintiff to present her own witnesses and evidence. See Defs. Mot.
at 41 (arguing that Plaintiff was provided all of the process due
under the Contract where she was served with written charges and
was provided the opportunity to cross-examine witnesses, present
her own witnesses and evidence, and present a closing argument).
Issues of fact remain whether Plaintiff was afforded the
opportunity to present her own witnesses and evidence.
Defendants assert that, because Plaintiff failed to offer any
testimony or evidence at the close of the hearing, Plaintiff “bowed
out” of the hearing and waived her right to any further process.
Defs. Resp. at 28 (d/e 43); Defs. Mot. at 42 (arguing that Plaintiff’s
decision not to testify or prepare witnesses foreclosed her due
process claim). If a terminated employee does not avail herself to
the pre-termination hearing, she forfeits her right to complain that
the hearing was inadequate. Baird, 389 F. 3d at 694-95; see also,
e.g., Carmody, 747 F.3d at 479 (finding that the plaintiff’s
“decision to bow out of the post-termination hearing” foreclosed
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any due process claim premised on the hearing). In this case,
however, Plaintiff did not forfeit her due process claim. Her
attorney objected before the hearing that Plaintiff was not provided
sufficient detail to prepare a defense. During the hearing, counsel
objected to the calling of witnesses he did not know anything about
and evidence he had not had the chance to review. At the
conclusion of the hearing, counsel requested a continuance to
prepare a defense. Plaintiff did not forfeit her due process claim.
Plaintiff asserts that she is entitled to summary judgment
because the Defendants were not impartial and she was not
afforded a hearing before a fair tribunal. According to Plaintiff,
several Board members had determined, prior to the termination
hearing, that Plaintiff should be dismissed. Plaintiff points to
Clark’s correspondence to Plaintiff on June 23, 2015, wherein he
states that he will be requesting that Plaintiff be dismissed from
employment. She also points to the notation at the suspension
hearing that the new superintendent’s start date would be the day
after Plaintiff was terminated.
Plaintiff also asserts that several Board members were openly
violating District policies that relate to communications with staff,
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including the policy that Board members must channel
communications through the Superintendent. Plaintiff further
asserts that the Board members testified under oath as witnesses
at the hearing and then issued a determination based in part on
their own testimony. Finally, Plaintiff challenges Clark’s role in the
investigation of the matter and his ability to judge the matter fairly.
A basic requirement of due process is a fair trial before a fair
tribunal. Withrow v. Larkin, 421 U.S. 35, 46 (1975). It is
presumed that those serving as adjudicators will act in good faith,
honestly, and with integrity. Head v. Chi. Sch. Reform Bd. of Trs.,
225 F.3d 794, 804 (7th Cir. 2000). To overcome this presumption,
Plaintiff must come forward with substantial evidence of actual or
potential bias, such as evidence of a pecuniary interest, personal
animosity toward Plaintiff, or actual prejudgment of Plaintiff’s case.
Id. Viewing the facts in the light most favorable to Defendants, the
Court finds that Plaintiff has not shown that she is entitled to
summary judgment on this ground.
Familiarity with or involvement with the matter under
consideration is not adequate, by itself, to overcome the
presumption. Id. Moreover, the mere fact that Clark, as President
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of the Board, commenced an action to terminate the contract does
not, without more, mandate a finding that the Board was not
impartial. See e.g. Woods-Clendening v. Bd. of Educ., No. 02 C
3578, 2002 WL 1732921, at *3 (N.D. Ill. July 25, 2002) (finding
that “the mere fact that the Board commenced an action to
terminate plaintiff’s contract, without more, does not mandate a
finding of impartiality”). Plaintiff may be able to elicit facts at trial
that, as a whole, support a finding that the Board was not
impartial. However, she is not entitled to summary judgment on
this ground.
B.
The Motions for Summary Judgment on Count II are
Denied
In Count II, brought pursuant to 42 U.S.C. § 1983, Plaintiff
alleges that she was stigmatized by the statements made against
her, which resulted in damage to her professional reputation and
loss of other employment opportunities. Plaintiff claims that
Defendants falsely stated that Plaintiff:
had been “careless,” “negligent,” and acted in a “fiscally
irresponsible fashion”
“deceived the Board” on multiple occasions
Page 26 of 53
“undermined the integrity of the educational process”
“threatened, intimidated, and coerced staff members”
debased her authority, integrity, and standing as
Superintendent of the District”
“expressed paranoia [sic] delusions about her employment;
and
exposed the District to liability under State and Federal
disability education laws.
These statements appear in the Discharge Resolution.
Because an individual has no liberty interest in her reputation,
simple defamation by the government does not deprive an
individual of liberty within the meaning of the Due Process Clause.
See McMahon v. Kindlarski, 512 F.3d 983, 988 (7th Cir. 2008).
However, the concept of liberty includes “the liberty to follow a
trade, profession[,] or other calling.” Pieva v. Norquist, 195 F.3d
905, 915 (7th Cir. 1999) (quotation marks and citations omitted).
“When the government removes someone from a position for stated
reasons likely to make him all but unemployable in the future, by
marking him as one who lost his job because of dishonesty or
other job-related moral turpitude, the consequences are akin to
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depriving him of the ability to follow his chosen trade, and due
process must be provided.” Id. (quotation marks and citations
omitted); see also Strasburger v. Bd. of Educ., Hardin Cnty. Cmty.
Unit Sch. Dist. No. 1, 143 F.3d 351, 356 (7th Cir. 1998)
(recognizing that government employees have “a liberty interest in
not being discharged from their employment while being defamed
such that they cannot get other government employment”).
Therefore, the Due Process Clause is implicated when the
government, while terminating an employee, (1) makes a charge
against the employee that might seriously damage her standing or
association in the community or (2) imposes on her a stigma or
other disability that forecloses her freedom to take advantage of
other employment opportunities.3 Bd. of Regents v. Roth, 408 U.S.
564, 573 (1972); Covell v. Menkis, 595 F.3d 673, 677 (7th Cir.
2010). In such cases, due process requires the individual be given
The “stigma or other disability” type of claim has generally been found where
the government imposes a legal barrier to future employment, such as denial
of admission to the bar, disqualification from all government employment, or
sending adverse information to a professional licensing agency. Adams v.
Walker, 492 F.2d 1003, 1009 (7th Cir.1974). Plaintiff has presented no
evidence that her claimed inability to find employment was a result of this
type of stigma or disability imposed on her by Defendants.
3
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an opportunity to refute the charges. Roth, 408 U.S. at 573
(1972).
To prevail on a liberty cause of action, a plaintiff must show
the following: that (1) she was stigmatized by the defendant's
conduct; (2) the stigmatizing information was publicly disclosed;
and (3) she suffered a tangible loss of other employment
opportunities as a result of the public disclosure. Covell, 595 F.3d
at 677-78. In addition, the stigmatizing information must be
disclosed incident to the change in employment status. See, e.g.,
Paul v. Davis, 424 U.S. 693, 710 (1976) (providing that “the
defamation had to occur in the course of the termination of
employment”).
Sufficiently defamatory statements are those that impugn an
employee’s moral character or imply dishonesty or other jobrelated moral turpitude. See Pieva, 195 F.3d at 916; Lashbrook v.
Oerkfitz, 65 F.3d 1339, 1348-49 (7th Cir. 1995) (listing charges of
immorality, dishonesty, alcoholism, disloyalty, Communism, or
subversive acts as the sort of charges that infringe an employer’s
liberty when accompanied by termination). Statements of opinion
do not constitute defamatory statements so long as the statements
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do not imply false facts. Strasburger, 143 F.3d at 356 (the
statements must be false assertions of fact and must “come from
the mouth of a public official”). Because the remedy for a liberty
claim is a name-clearing hearing, the statements must be of a kind
that the employee could refute and clear her name. Id.; see also
Endicott v. Huddleston, 644 F.2d 1208, 1216 (7th Cir. 1980) (when
the county board declined to rehire the plaintiff and articulated
charges of dishonesty and immorality as the reason, the plaintiff
had a constitutional right to notice and a hearing that afforded him
the opportunity to clear his name).
Plaintiff moves for summary judgment, but she has not
presented evidence showing that she is entitled to judgment as a
matter of law. For example, Plaintiff has failed to point to evidence
that Defendants distributed the Discharge Resolution to the media.
See, e.g., Covell, 595 F.3d at 678 (7th Cir. 2010) (providing that the
plaintiff must prove that a defendant disseminated the stigmatizing
information to the public). Therefore, Plaintiff’s motion for
summary judgment on Count II is denied.
Defendants move for summary judgment on several grounds.
Defendants first argue that the statements are not defamatory
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because they are true. However, Plaintiff has presented evidence
suggesting that the assertions are false, including the report of
Roger Stone who opined that Plaintiff handled the budget and
financial matters for the School District in an appropriate manner.
Although Defendants claim that Mr. Stone’s report is based on an
inadequate and incomplete review of the record and that Mr. Stone
has little experience with the programs at issue, that argument
goes to the weight of the evidence, which the Court will not
evaluate on summary judgment. See, e.g., George v. Kraft Foods
Global, Inc., 641 F.3d 786, 799 (7th Cir. 2011) (finding the district
court improperly weighed the evidence by deciding to give the
witness’s opinion less weight “because of his inexperience with
large plans”). Therefore, genuine issues of material fact preclude
summary judgment on this ground.
Defendants next argue that the statements that Plaintiff was
negligent, incompetent, threatening, or paranoid (Sec. Am. Compl.
¶ 66(a), (d), (f) and (g)) are not stigmatizing as a matter of law.
Defendants do not specifically challenge the remaining statements.
The Court agrees in part.
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Charges of incompetence, malfeasance of office,
mismanagement, and failure to meet a specific level of
management are all insufficient to implicate a liberty interest. See
Munson v Friske, 754 F.2d 683, 693 (7th Cir. 1985) (“Liberty is not
infringed by a label of incompetence or a failure to meet a specific
level of management skills, which would only affect one’s
professional life and force one down a few notches in the
professional hierarchy.”); Adams, 492 F.2d at 1008. Therefore, the
statements that Plaintiff had been “careless,” “negligent,” “acted in
a fiscally irresponsible manner,” and exposed the District to
liability under State and Federal disability education laws, which
are essentially charges of incompetence and mismanagement, are
not sufficiently stigmatizing.
The statement that Plaintiff “threatened, intimidated, and
coerced staff members,” however, could be sufficiently stigmatizing
to someone in the education administration profession. See, e.g.,
Bryant v. Gardner, 545 F. Supp. 2d 791, 801 (N.D. Ill. 2008)
(determining, on a motion to dismiss that statements that the
plaintiff coach mistreated players and fellow coaches were
sufficiently stigmatizing to someone in the coaching profession). In
Page 32 of 53
addition, the statement that Plaintiff “expressed paranoia [sic]
delusions about her employment” could be sufficiently stigmatizing
because it calls into question Plaintiff’s mental stability.
Defendants next argue that Plaintiff did not suffer a tangible
loss of employment opportunity. To establish a tangible loss of
employment opportunity, Plaintiff must show that the publicly
stated reason for the discharge effectively blacklisted her from
employment in comparable jobs and made it virtually impossible
for her to find new employment in her chosen filed. Wood v. Peoria
Sch. Dist. 150, 162 F.Supp.3d 786, 794 (C.D. Ill. 2016).
Plaintiff testified that she has applied for 171 professional
positions for which she was qualified. She has had two interviews
but was not hired for either position. She claims that during one
of the interviews, a business professor brought up the newspaper
and internet accounts of the Villa Grove situation. As of July 10,
2016, Plaintiff had accepted a minimum wage position at Kohl’s
stocking the shelves overnight. This evidence, taken in the light
most favorable to Plaintiff, would permit a reasonable trier of fact
to find that the publicly stated reasons for the discharge are the
reason why Plaintiff was not hired by other employers.
Page 33 of 53
For all of these reasons, neither Plaintiff nor Defendants are
entitled to summary judgment on Count II.
C.
The Individual Defendants are Not Entitled to Absolute
Immunity But Are Entitled to Qualified Immunity
The individual Defendants argue that they are entitled to
absolute and qualified immunity.
The individual Defendants first argue that they are entitled to
absolute immunity for their legislative actions. They assert,
without citation to any authority, that the determination of how
the termination proceeding would proceed, participation in the
hearing, and Plaintiff’s termination, are all functions within the
Board’s legislative capacity.
While all acts taken within the sphere of legislative activity
are protected by absolute immunity (see Bogan v. Scott-Harris, 523
U.S. 44, 54 (1998)), termination of an employee is generally not
considered a legislative function. Rateree v. Rockett, 852 F.2d
946, 951 (7th Cir. 1988); Roberson v. Mullins, 29 F.3d 132, 135
n.4 (4th Cir. 1994). An exception is recognized where the
termination is accomplished through traditional legislative
functions. Rateree, 852 F.2d at 950 (7th Cir. 1988) (finding that
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the commissioners’ budgetary decision to eliminate certain jobs
was a legislative act, and the commissioners were entitled to
absolute immunity).
The acts complained of here involve the termination of an
employee, which is an administrative act. See Baird, 389 F.3d at
698 (rejecting the Board’s argument that they were entitled to
absolute legislative immunity absolutely immune for determining
the rules and procedures of the hearing, participating in the pretermination hearing, and deciding to terminate the plaintiff, finding
that the issues raised on appeal involved the termination of an
employee, which was an administrative act). Therefore, the Board
members have not demonstrated that they are entitled to
legislative immunity.
The individual Defendants also argue that they are entitled to
absolute judicial immunity because they were members of a quasijudicial adjudicatory body and acted in a quasi-judicial capacity
In Wood v. Strickland, 420 U.S. 308, 320 (1975), the United
States Supreme Court refused to grant judicial immunity to
members of a school board that adjudicated violations of school
disciplinary regulations. The Court held that “absolute immunity
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would not be justified since it would not sufficiently increase the
ability of school officials to exercise their discretion in a forthright
manner to warrant the absence of a remedy for students subjected
to intentional or otherwise inexcusable deprivations.” Id.
Some courts have extended the Wood rationale to school
boards that discharge employees. See Stewart v. Baldwin Cnty.
Bd. of Educ. 908 F.2d 1499, 1508 (11th Cir. 1990); see also, e.g.,
Grady v. Bd. of Trs, of N. Ill. Univ., 78 F. Supp. 3d 768, 781 (N.D.
Ill. 2015) (finding that judicial immunity did not apply to grievance
committee defendants who were not acting in a legislative capacity
when they terminated the plaintiff). While the Seventh Circuit has
not expressly addressed the issue, the Seventh Circuit did state, in
dicta, that a university’s judicial officers were likely not entitled to
absolute judicial immunity for expelling a student in light of Wood
and Cleavinger v. Saxner, 474 U.S. 193, 204-06 (1985) (holding
that members of prison disciplinary committees are not entitled to
absolute judicial immunity. See Osteen v. Henley, 13 F.3d 221,
224 (7th Cir. 1993). In light of this authority, the Court finds that
the individual Defendants have failed to demonstrate that they are
entitled to absolute judicial immunity.
Page 36 of 53
The individual Defendants also claim that they are entitled to
qualified immunity on Counts I and II. Defendants assert that
they provided Plaintiff with notice of the charges, a hearing, and an
opportunity to present evidence. According to Defendants, these
actions were consistent with the Contract and with the law and
cannot be a knowing violation of the law.
Qualified immunity shields government officials from civil
damages claims if the officials’ actions did not violate clearly
established statutory or constitutional rights. Viilo v. Eyre, 547
F.3d 707, 709 (7th Cir. 2008) The Court asks (1) whether the
facts as alleged show a violation of a statutory or constitutional
right; and (2) whether that right was clearly established. Dibble v.
Quinn, 793 F.3d 803, 807 (7th Cir. 2015). The Court may answer
the second question first. Id. To be clearly established, a right
must be “defined so clearly that every reasonable official would
have understood that what he was doing violated that right.” Id. at
808. A case directly on point is not necessary, but existing
precedent must have placed the question beyond debate. Id. The
allegedly violated right must have been established not as a broad
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proposition, but in a particularized sense such that the right’s
contours are clear to a reasonable official. Id.
Plaintiff bears the burden of defeating Defendants’ assertion
of qualified immunity, either by identifying a closely analogous
case or showing that “the conduct was so egregious that no
reasonable person could have believed that it would not violate
clearly established rights.” Chelios v. Heavener, 520 F.3d 678, 691
(7th Cir. 2008) (quotation marks and citations omitted); see also
Abbott v. Sangamon Cnty., Ill., 705 F.3d 706, 724 (7th Cir 2013).
Plaintiff has done neither. See Pl.’s Resp. at 33-34. Therefore, the
individual Defendants are entitled to qualified immunity.
D.
Defendants Are Not Entitled to Summary Judgment on
Count III, Breach of Contract, Because Questions of Fact
Remain
In Count III, Plaintiff alleges that the Board breached the
parties’ Contract by terminating from her position as
Superintendent prior to the end of her term and terminating
Plaintiff in an arbitrary, capricious, and unreasonable manner.
To establish a breach of contract, Plaintiff must prove (1) the
existence of a valid and enforceable contract; (2) performance by
Plaintiff; (3) breach of contract by the Board; and (4) resultant
Page 38 of 53
injury to the Plaintiff. Burkhart v. Wolf Motors of Naperville, Inc.
ex rel. Toyota of Naperville, 2016 IL App (2d) 151053. Genuine
issues of material fact remain whether the Board breached the
Contract by discharging Plaintiff. Therefore, summary judgment
on Count III is denied.
E.
Defendants are Entitled to Summary Judgment on Count
IV, Intentional Infliction of Emotional Distress
In Count IV, Plaintiff alleges that Defendants committed the
tort of intentional infliction of emotional distress by wrongfully
terminating her Contract and for the statements made in the
Discharge Resolution.
To prove her claim of intentional infliction of emotional
distress, Plaintiff must demonstrate that (1) Defendants’ conduct
was extreme and outrageous; (2) Defendants knew there was a
high probability that their conduct would cause severe emotional
distress; and (3) the conduct caused severe emotional distress.
Kolegas v. Heftel Broad. Corp., 154 Ill. 2d 1, 20 (1992). Mere
insults, indignities, threats, or annoyances do not qualify as
extreme and outrageous conduct. Id. “[T]o qualify as outrageous,
the nature of the defendant’s conduct must be so extreme as to go
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beyond all possible bounds of decency and be regarded as
intolerable in a civilized society.” Feitmeier v. Feitmeier, 207 Ill. 2d
263, 274 (2003).
Defendants assert they are entitled to summary judgment
because the termination of an employee does not meet the
standard for the intentional infliction of emotional distress.
Plaintiff asserts, without citation to any authority, that Defendants’
conduct was extreme and outrageous. Pl.’s Resp. at 36. She
asserts that the extreme and outrageous conduct consisted of the
Board methodically gathering information about Plaintiff for
months from dozens of faculty members and then terminating
Plaintiff “in a fashion intentionally orchestrated to publicly
humiliate her.” Id.
Illinois courts are reluctant to find intentional infliction of
emotional distress in the workplace, noting that, if everyday job
stresses including the termination of employment could give rise to
the cause of action, nearly every employee would have a cause of
action. See Heying v. Simonaitis, 126 Ill. App. 3d 157, 166 (1984);
Richards v. U.S. Steel, 869 F.3d 557, 567 (7th Cir. 2017) (Illinois
law limits recovery to cases where the employer’s conduct is “truly
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egregious”). Courts will find extreme and outrageous behavior only
“where the employer clearly abuses the power it holds over an
employee in a manner far more severe than the typical
disagreements or job-related stress caused by the average work
environment.” Honaker v. Smith, 256 F.3d 477, 491 (7th Cir.
2001) (citing Illinois cases). Relevant factors include the degree of
power the employer holds over the employee, whether the employer
reasonably believed that objective was legitimate, and whether the
employer knew the plaintiff was particularly susceptible to
emotional distress. See Honaker, 256 F.3d at 491; Thomas v.
Coach Outlet Store, No. 16 C 3950, 2017 WL 386656, at * 4 (N.D.
Ill. Jan. 27, 2017).
The Court finds that the conduct here—the investigation and
the manner in which Plaintiff was terminated—does not rise to the
level of extreme and outrageous required under Illinois law. An
alleged bad faith investigation of an employee is not extreme and
outrageous if the employer had a legitimate purpose. Graham v.
Commonwealth Edison Co., 318 Ill. App. 3d 736, 746 (2000).
Defendants have pointed to evidence that they had a legitimate
purpose—investigating complaints made against Plaintiff.
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Moreover, nothing about the manner of Plaintiff’s termination
constitutes extreme or outrageous conduct under Illinois law. See
Brackett v. Galesburg Clinic Ass’n, 293 Ill. App. 3d 867, 870-71
(1997) (summary termination of 44-year employee conducted in
violation of policy, the escorting of the employee out of the building
without allowing her to collect her belongings, and the statement
hinting that the plaintiff was terminated for something “really bad”
did not constitute outrageous conduct); Thomas v. Coach Outlet
Store, No. 16 C 3950, 2017 WL 386656, at *5 (N.D. Ill. Jan. 27,
2017) (finding that falsely accusing the plaintiff of theft, patting her
down, searching her, and terminating her did not support an
intentional infliction of emotional distress claim); Fang v. Vill. of
Roselle, No. 95 C 5175, 1996 WL 386556 at *3 (N.D. Ill. July 5,
1996) (a wrongful, malicious discharges does not, by itself,
constitute outrageous conduct and further noting that most
conduct by an employer “short of an attempted coercion into a
crime or sexual misconduct” does not constitute outrageous
conduct). Therefore, Defendants are entitled to summary
judgment on Count IV.
Page 42 of 53
F.
Defendants are Entitled to Summary Judgment on Count
V, Defamation
In Count V, Plaintiff alleges that Defendants published
statements that are defamatory per se in that they inferred that
Plaintiff has (a) shown a lack of integrity in the discharge of her
employment and (b) has shown a lack of ability in her trade,
profession, or business. Plaintiff does not specifically identify the
statements but Plaintiff appears to be referring to the statements
in the Discharge Resolution.
The Court finds that the Board and individual Board
members are immune from suit based on the alleged defamatory
statements.
Illinois law provides that a “local public entity is not liable for
injury caused by any action of its employee that is libelous or
slanderous[.]” 745 ILCS 10/2-107. Therefore, the Board is
statutorily immune from Plaintiff’s claims based on the alleged
defamatory statements. See Horwitz v. Bd. of Educ. of Avoca Sch.
Dist. No. 37, 260 F.3d 602, 617 (7th Cir. 2001) (holding that,
under 745 ILCS 10/2-107, the school board could not be sued for
the allegedly defamatory remarks the Board made about Plaintiff.
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The individual Board members are also immune from suit if
their allegedly defamatory statements were made within the scope
of their official duties. Id. at 617 (noting that the absolute privilege
is afforded to particular officials who should be free to exercise
their duties free from the fear of damages suits and finding that
principal, superintendent, and school board president were
immune from suit for statements that made while acting within the
scope of their official duties). This immunity is not overcome by a
showing of malice, improper motivation, or knowledge that the
statements are false. Id. at 618. In this case, the statements were
made in a document issued to Plaintiff upon her termination and
set forth the basis for her termination. Plaintiff has not pointed to
any evidence suggesting that the individual Board members were
acting in their personal capacities or exceeded the scope of their
official duties. Therefore, Defendants are entitled to summary
judgment on Count V.
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G.
Defendants are Not Entitled to Summary Judgment on
Count VI, Trespass to Chattels
In Count VI, Plaintiff alleges that Defendants intentionally
trespassed on Plaintiff’s private property by reviewing and deleting
files contained within four portable USB drives found in her office.
Trespass to chattels is committed by intentionally (1) dispossessing
another of a chattel or (2) using or intermeddling with the chattel
in possession of another. Sotelo v. Direct Revenue, LLC, 384 F.
Supp. 2d 1219, 1229 (N.D. Ill. 2005) (citing RESTATEMENT
(SECOND) OF TORTS, § 217).
Defendants argue that they are entitled to summary
judgment under the doctrine of de minimis non curat lex, which
means, “the law doesn’t care about trifles.” Mitchell v. JCG Indus.,
Inc., 745 F.3d 837, 841 (7th Cir. 2014). In support thereof,
Defendants cite Sturdy v. Medtrak Educ. Servs, LLC, No. 13-cv3350, 2014 WL 2727200, at *4 (C.D. Ill. June 16, 2014) (Bruce, J.).
In Sturdy, the court found that, even though a plaintiff might
generally be able to recover nominal damages for conversion and
trespass to chattel, the damages for a single sheet of paper and
some toner were so inconsequential that even nominal damages
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would not be appropriate. Sturdy, 2014 WL 2727200, at *4-5
(citing cases) (concluding that “even if sending an unsolicited fax
advertisement can be said to constitute conversion or trespass to
chattels of a single piece of paper and the toner used to print the
fact, the doctrine of de minimis non curat lex bars these claims”).
In this case, Defendants argue that the harm in this case is
minimal because Plaintiff’s attorney was able to recover the files
allegedly deleted from the USB drives and Plaintiff could not
identify any of the missing pictures.
The Court finds that facts of this case are not similar to cases
involving unsolicited fax advertisements involving a single piece of
paper and toner. Plaintiff has pointed to evidence that she was
deprived of her digital files for a period of time and certain
photographs are missing. This type of damage is distinguishable
from a single piece of paper and toner.
The parties do not address whether the data on the USB
drives constitutes tangible personal property. See Am. Nat’l Ins.
Co. v. Citibank, 543 F.3d 907, 910 (7th Cir. 2008) (“Illinois courts
do not recognize an action for conversion of intangible rights” but
also noting that, for example, the rights involved with commercial
Page 46 of 53
paper merge into the document, which is tangible); Ogbolumani v.
Young, 2015 IL App (1st) 141930-U (Ill. App. Ct. Mar. 20, 2015).
(unpublished) (finding the plaintiff did not state a claim for
trespass to chattel based on digital information contained on a
USB drive); Sheridan v. iHeartMedia, Inc., 255 F. Supp. 3d 767,
781 (N.D. Ill. 2017) (finding that a digital file was not sufficient
tangible property for a conversion claim). The parties shall be
prepared to discuss this issue at the Final Pretrial Conference.
Defendants also argue that they are immune from liability
under various provisions of the Tort Immunity Act for the
intentional infliction of emotional distress, defamation, and
trespass to chattels claims but do not specifically tie the specific
immunity to the trespass to chattels claim. Undeveloped
arguments are forfeited. See Judge v. Quinn, 612 F.3d 537, 557
(7th Cir. 2010) (perfunctory arguments are waived), am. 387 F.
App’x 629 (2010). Therefore, Defendants have forfeited the
argument at summary judgment but may raise the argument, if
necessary, posttrial.
Page 47 of 53
H.
Defendants are Entitled to Summary Judgment on Count
VII, Gender Discrimination under Title VII
In Count VII, Plaintiff’s Title VII gender discrimination claim,
Plaintiff alleges that she was paid substantially less than the
previous Superintendent was paid and suffered an adverse action
when she was discharged from her employment. She claims that
the lower pay and termination were because of her gender.
Defendants assert that they are entitled to summary
judgment because (1) Plaintiff failed to raise the pay disparity claim
in her charge of discrimination; (2) Plaintiff has no evidence of
discrimination; and (3) the claims against the individual
defendants must be dismissed because Title VII does not authorize
suits against individuals agents of the employer.
Taking the last argument first, the Court finds that the
individual Defendants are entitled to summary judgment on Count
VII. Plaintiff cannot maintain Title VII claims against the
individual defendants. Boss v. Castro, 816 F.3d 910, 914 n.1 (7th
Cir. 2016) (“Title VII authorizes suits against the employer as an
entity, not against individual agents of the employer.”).
Page 48 of 53
The Court also finds that the Board is entitled to summary
judgment because Plaintiff has failed to point to any evidence of
gender discrimination.
As the Board notes, a plaintiff may not generally bring claims
under Title VII that were not included in the charge of
discrimination. Peters v. Renaissance Hotel Operating Co., 307
F.3d 535, 550 (7th Cir. 2002). An exception exists, however, if the
claim not contained in the charge of discrimination is “like or
reasonably related” to the EEOC charge and the claim would
reasonable be expected to grow out of an EEOC investigation of the
charge. Id. The Board asserts that Plaintiff did not include the
pay disparity claim in her charge of discrimination.
Even assuming, however, that a pay disparity claim is
reasonably related to Plaintiff’s claim that she was terminated
because of her gender, Plaintiff points to no evidence to support
either claim. In her response to the Board’s Motion for Summary
Judgment, Plaintiff asserts that she has “pleaded all she needs to
plead to sustain this cause of action.” Pl.’s Resp. at 40 (d/e 44).
However, Plaintiff, as the nonmoving party, cannot rest on the
allegations in her complaint but must offer support for those
Page 49 of 53
allegations. See Mosley v. City of Chi., 614 F.3d 391, 400 (7th Cir.
2010). The Seventh Circuit has described summary judgment as
the “‘put up or shut up moment in a lawsuit, when a party must
show what evidence it has that would convince a trier of fact to
accept its version of the events.’” Steen v. Myers, 486 F.3d 1017,
1022 (7th Cir. 2007) (quoting Hammel v. Eau Galle Cheese
Factory, 407 F.3d 852, 859 (7th Cir. 2005)).
Therefore, to avoid summary judgment, Plaintiff must point to
evidence sufficient to permit a reasonable factfinder to conclude
that Plaintiff was paid less or terminated because of her gender.
See, e.g., Ortiz v. Werner Enter., Inc., 834 F.3d 760, 765 (7th Cir.
2016) (involving an employment discrimination case under Title VII
and discarding the practice of distinguishing between direct and
indirect evidence). The legal standard “is simply whether the
evidence would permit a reasonable factfinder to conclude that the
plaintiff’s race, ethnicity, sex, religion, or other proscribed factor
caused the discharge or other adverse employment action.” Id.
The McDonnell Douglas framework created by McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973), remains a method of
assessing the evidence in discrimination cases, but it is not the
Page 50 of 53
only way to assess circumstantial evidence of discrimination.
David v. Bd. of Trs, of Cmty. Coll. Dist. No. 508, 846 F.3d 216, 224
(7th Cir. 2017) (but also assessing the evidence cumulatively to
determine whether the evidence permits a reasonable factfinder to
determine that the adverse action was attributable to the plaintiff’s
age, race, or sex). Under the McDonnell Douglas framework,
Plaintiff must first establish a prima facie case by establishing (1)
she was a member of a protected class; (2) she was meeting the
employer’s legitimate expectations; (3) she suffered an adverse
employment action; and (4) other similarly situated employees who
were not members of the protected class were treated more
favorably. See McKinney v. Office of Sheriff of Whitley Cnty., 866
F.3d 803, 807 (7th Cir. 2017). Once she establishes her prima
facie case, the burden shifts to Defendants to provide a legitimate,
nondiscriminatory reason for the employment decision. Id.
Plaintiff must then present evidence that Defendants’ stated
reason is a pretext for gender discrimination. Id.
Plaintiff points to no evidence from which a reasonable
factfinder could conclude that Plaintiff was paid less or was
terminated because of her gender. Additionally, Plaintiff has not
Page 51 of 53
established a prima facie case under McDonnell Douglas, at least
with regard to her termination claim. Plaintiff has not identified
any similarly-situated male employees who was not terminated
under similar circumstances. Moreover, the Board has articulated
a legitimate, nondiscrimination reason for why it paid Plaintiff less
than her predecessor—because he was a long-standing District
employee and received a retirement incentive that increased his
salary before retirement—and why the Board terminated Plaintiff—
because of deteriorating morale, loss of the Board’s trust, financial
mismanagement, and mishandling of special education issues.
Plaintiff has not pointed to any evidence suggesting that the stated
reasons were a pretext for gender discrimination.
For all of these reasons, Defendants are entitled to summary
judgment on Count VII.
IV. CONCLUSION
For the reasons stated, Plaintiff’s Motion for Partial Summary
Judgment (d/e 38) is DENIED. Defendants’ Motion for Summary
Judgment (d/e 39) is GRANTED IN PART and DENIED IN PART.
Genuine issues of material fact preclude summary judgment on
Counts I, II, III, and VI. Defendants are entitled to summary
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judgment on Counts IV, V, and VII. The individual Defendants are
entitled to qualified immunity on Counts I and II. This matter is
set for a Final Pretrial Conference on March 2, 2018 at 1:30 p.m.
and a Jury Trial on March 20, 2018 at 9:00 a.m. in Courtroom 1 in
Springfield before U.S. District Judge Sue E. Myerscough. This
trial date is not a firm date. The Court sets civil trials on a trailing
trial calendar, meaning a civil trial is subject to being continued if
criminal trial or a trial in an older civil case is scheduled. The
parties are again advised of their option to consent to the
Magistrate Judge, who would be able to give them a firm trial date.
ENTERED: December 11, 2017
FOR THE COURT:
s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE
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