Ortony v. Northwestern University
Filing
16
MEMORANDUM Opinion and Order Signed by the Honorable George M. Marovich on 11/29/2012:Mailed notice(tlp, )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
ANDREW ORTONY,
Plaintiff,
v.
NORTHWESTERN UNIVERSITY,
Defendant.
)
)
)
)
)
)
)
)
)
No. 12 C 5475
Judge George M. Marovich
MEMORANDUM OPINION AND ORDER
Plaintiff Andrew Ortony (“Prof. Ortony”) filed a two-count complaint against
Northwestern University. In his complaint, Prof. Ortony asserts claims for age discrimination in
violation of the Age Discrimination in Employment Act (“ADEA”) and for breach of contract.
Defendant moves to dismiss plaintiff’s claims. For the reasons set forth below, the Court grants
defendant’s motion.
I.
Background
For purposes of this motion to dismiss, the Court takes as true the allegations in Prof.
Ortony’s complaint.
From 1989 until earlier this year, Prof. Ortony was a tenured Professor of Psychology,
Education and Social Policy, and Computer Science at defendant Northwestern University.
According to the Northwestern University Faculty Handbook, “[t]enure signifies appointment for
an indefinite period.” Prof. Ortony alleges that, as a tenured professor, he could be discharged
from employment only for cause.
In the spring of 2007, Prof. Ortony requested permission for an academic leave of
absence at a foreign university. Prof. Ortony met with Professor Penelope Peterson (“Prof.
Peterson”), the dean of Northwestern University’s School of Education and Social Policy, to
discuss his request.
Before requesting a leave, Prof. Ortony had given no thought to his retirement. After the
meeting with Prof. Peterson, Prof. Peterson sent Prof. Ortony a letter. The letter stated, in
relevant part:
June 19, 2007
Professor Andrew Ortony
School of Education and Social Policy
Northwestern University
Annenberg Hall
Evanston, IL 60208
Dear Andrew:
I am writing to confirm the proposal we began discussing last month and finalized
in subsequent conversations during late May and early June.
At your request, I will accept your resignation from the Northwestern University
faculty effective with your retirement on August 31, 2012. In recognition of your
many years of service to the School of Education and Social Policy (SESP), I will
recommend your appointment as an unsalaried Professor Emeritus effective
immediately thereafter.
Between now and your retirement on August 31, 2012, the following terms will
apply:
During the Fall of academic year 2007-08, you will teach your regular course(s)
and be fully active, in-service, and in residence.
You will begin a leave of absence in Winter quarter 2007-08 through Fall quarter
2008-09. This will constitute a paid leave of absence at your full salary. The
School will pay your summer salary as usual during the summer of 2008. Per our
agreement, during this time, you will continue to direct the Master of Arts (MA)
program in Learning Sciences (LS). I will, however, appoint another faculty
member to co-direct the program during this period. We expect you to return to
campus two or three times to attend to program matters and be accessible via
email and/or for the occasional phone call during your leave to advise me,
program staff, and your co-director with regard to MA LS issues.
-2-
Effective with your return in Winter quarter 2008-09, and through 2010-11, your
appointment and all associated responsibilities will remain as they are at present.
You will fulfill your responsibilities for your full teaching load. During this
period, you will also continue to discharge such faculty responsibilities as
advising, attendance at faculty meetings, committee service, etc. I will also ask
that you resume independently directing our MA program in Learning Sciences.
That appointment will be ongoing for as long as we mutually agree on that
assignment.
During academic year 2011-12, you will receive a paid leave of absence at your
full salary. As usual, the salary will be distributed in twelve monthly
installments. During this leave you will remain eligible for University benefits,
including University contributions to health insurance plans at the full-time,
active level. The University will also continue to make retirement contributions.
The leave of absence means you will not be required to be in residence or to teach
during academic year 2011-12. In addition, the School will continue to
guarantee–or pay–your summer salary through the summer of 2012. As is always
the case, for this final summer or any time between now and then, should you
have external funding available to support your summer salary, we would
certainly appreciate the opportunity to supplant internal funding and reallocate
those funds to other worthwhile purposes in the School.
If you wish to retire from, or for any other reasons terminate your appointment
with, the University prior to August 31, 2012, you of course may do so. Having
agreed to provide a paid leave of absence during calendar year 2008, however, we
do expect that you will return to campus and to active service on our faculty at the
end of that leave, and that you will continue for a minimum of three academic
quarters before initiating any changes to this plan that would result in your earlier
departure. Allowing for that, I will support a request to retire earlier than August
31, 2012, and still provide a paid leave of absence during the final year preceding
your retirement. At such a time as you might wish to initiate such a revision to
this agreement, you will let me know and we will confirm those terms.
I trust you will find these terms consistent with our conversation. I encourage
you to review any benefits questions you have with . . .
You may indicate your acceptance of this plan by signing one copy of this letter
and returning it to my office.
In closing, though it is obviously premature–and I will look forward to expressing
these sentiments again in the future–I can’t let pass this opportunity to thank you
for the years of research, teaching and service that you have given to our School
and to Northwestern. I will look forward to much more good work together–and
for some time still–before the time comes to formally celebrate your transition to
our community.
-3-
The letter was signed by Prof. Peterson. Below her signature was a line labeled “Accepted by
Andrew Ortony” with a signature line above. Prof. Ortony signed the letter and dated it June 25,
2007.
On July 30, 2007, Prof. Ortony had lunch with Lawrence Dumas, who was, at the time,
the Provost of Northwestern University. Prof. Ortony asked the Provost to clarify his retirement
situation. The Provost told Prof. Ortony that he had the option to retire but that he was not
required to retire. Prof. Ortony put retirement “out of mind.”
The subject of Prof. Ortony’s retirement came up again in February 2011. On or about
February 17, 2011, Prof. Peterson informed Prof. Ortony that his teaching duties would be
reassigned due to his retirement at the end of the 2011-12 academic year.
Prof. Ortony alleges that, on November 11, 2011, he filed a charge of discrimination with
the Equal Employment Opportunity Commission (“EEOC”). Defendant submitted a copy of the
charge of discrimination, which reflects that Prof. Ortony signed the charge on November 29,
2011 and that the EEOC stamped it received on December 2, 2011. The EEOC issued a notice
of right to sue on May 24, 2012. On July 11, 2012, Prof. Ortony filed his complaint.
In
Count I of his complaint, Prof. Ortony alleges that Northwestern University violated the Age
Discrimination in Employment Act “by raising, in the context of his request for a leave, the issue
of his retirement.” Prof. Ortony believes that he “was treated differently than other, younger
professors who requested leaves and for whom the issue of retirement was never raised and who
were not required to retire.” In Count II, Prof. Ortony alleges that Northwestern University
breached the tenure agreement, as outlined in the Northwestern University Faculty Handbook.
II.
Standard on a motion to dismiss
-4-
The Court may dismiss a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil
Procedure if the plaintiff fails “to state a claim upon which relief can be granted.” Fed.R.Civ.P.
12(b)(6). In considering a motion to dismiss, the Court accepts as true all well-pleaded factual
allegations and draws all reasonable inferences in the plaintiff’s favor. McCullah v. Gadert, 344
F.3d 655, 657 (7th Cir. 2003). A complaint must “give the defendant fair notice of what the . . .
claim is and the grounds upon which it rests.” Bell Atlantic Corp. v. Twombley, 127 S.Ct. 1955,
1964 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). A complaint need not provide
detailed factual allegations, but mere conclusions and a “formulaic recitation of the elements of a
cause of action” will not suffice. Twombley, 127 S.Ct. at 1964-1965. A complaint must include
enough factual allegations to “raise a right to relief above a speculative level.” Twombley, 127
S.Ct. at 1965.
In considering a motion to dismiss, a court may not consider matters outside the
pleadings without converting the motion to a motion for summary judgment. See Fed.R.Civ.P.
12(b). The pleadings include documents attached to the complaint. See Fed.R.Civ.P. 10(c). The
pleadings also include documents referred to in the complaint that are central to the plaintiff’s
claim. Equal Employment Opportunity Comm’n v. Concentra Health Services, Inc., 496 F.3d
773, 778 (7th Cir. 2007) (document attached to motion to dismiss is considered part of the
pleadings where the document is referred to in the complaint and is central to the plaintiff’s
claim). Here, Prof. Ortony’s complaint refers to three documents that are central to her claim. In
¶ 13, Prof. Ortony refers to a letter sent to Prof. Ortony by Prof. Peterson. In ¶ 27, Prof. Ortony
refers to the Northwestern University Faculty Handbook. In ¶ 3, Prof. Ortony mentions the
-5-
charge of discrimination that he filed with the EEOC. Defendant has submitted these three
documents, and the Court will consider them as part of the pleadings on this motion to dismiss.1
III.
Discussion
A.
Plaintiff’s ADEA claim
Defendant moves to dismiss plaintiff’s ADEA claim on the basis of the 300-day statute
of limitations for filing a charge of discrimination.
The ADEA sets out administrative requirements that must be met before one may file a
discrimination complaint in federal court. The Supreme Court has explained that “strict
adherence to the procedural requirements specified by the legislature is the best guarantee of
evenhanded administration of the law.” National R.R. Passenger Corp. v. Morgan, 536 U.S.
101, 108 (2002) (quoting Mohasco Corp. v. Silver, 447 U.S. 807, 826 (1980)). “[P]rocedural
requirements established by Congress for gaining access to the federal courts are not to be
disregarded by courts out of a vague sympathy for particular litigants.” Threadgill v. Moore
U.S.A., 269 F.3d 848, 851 (7th Cir. 2001) (quoting Baldwin Cty. Welcome Ctr. v. Brown, 466
U.S. 147, 152 (1984)).
Among other procedural requirements, a plaintiff wishing to pursue his ADEA claim in
federal court generally must file a charge of discrimination with the EEOC or the Illinois
Department of Human Rights within 300 days after the allegedly unlawful employment practice.
See 29 U.S.C. § 626(d)(1)(B). This (like every) statute of limitations is an affirmative defense,
1
Defendant also attached a document entitled the School of Education and Social Policy
Policy and Procedures Handbook. Defendant argues that this document, while not mentioned in
plaintiff’s complaint, may be considered part of the pleadings because it is incorporated by
reference in the Northwestern University Faculty Handbook. The Court need not consider this
argument, because the document is not relevant to the motion to dismiss.
-6-
and the plaintiff need not plead around it. United States Gypsum Co. v. Indiana Gas Co., 350
F.3d 623, 626 (7th Cir. 2003). Still, a plaintiff “may plead himself out of court by alleging (and
thus admitting) the ingredients of a defense.” Id.
Defendant first argues that Prof. Ortony’s ADEA claim accrued in June 2007, when he
was first notified that he was expected to retire on August 31, 2012. This Court agrees. Prof.
Ortony’s claim accrued when he was first told in 2007 that he was expected to retire on August
31, 2012. Delaware State College v. Ricks, 449 U.S. 250, 258 (1980) (The “alleged
discrimination occurred–and the filing limitations period therefore commenced–at the time the
tenure decision was made and communicated to [plaintiff]. That is so even though the effects of
the denial of tenure–the eventual loss of a teaching position–did not occur until later.” ); see also
Carter v. Chicago State Univ., Case NO. 07 C 4930, 2011 WL 3796886 at *7 (N.D. Ill. Aug. 24,
2011) (plaintiff’s claim accrued when he was first told about his summer schedule, not when he
was later provided a final contract). Prof. Ortony implicitly concedes this “discovery” rule by
arguing that his claim accrued in February 2011 (when Northwestern University again brought
up the subject of his retirement) rather than on August 31, 2012. The claim, though, accrued
when Prof. Ortony was first notified, not when he was reminded. It is clear from the pleadings
that Prof. Ortony knew no later than June 25, 2007 (the day he signed Prof. Peterson’s letter) that
Northwestern expected him to retire on August 31, 2012. Prof. Ortony’s claim accrued no later
than June 25, 2007.
Prof. Ortony’s better argument is that the statute of limitations is tolled due to equitable
tolling or equitable estoppel. In his complaint, Prof. Ortony alleges that, on July 30, 2007, he
had lunch with the Provost, who told him that retirement was an option, not a requirement. Of
-7-
course, Prof. Ortony need not plead around the statute of limitations affirmative defense, so he
need not include in his complaint all of the details of his equitable tolling/estoppel argument.
Likewise, the Court need not decide whether equitable tolling and equitable estoppel actually
apply in this case.
What the Court needs to decide is whether, even assuming equitable tolling and equitable
estoppel apply, Prof. Ortony has admitted the elements of Northwestern’s statute of limitations
affirmative defense. The Court concludes that he has. “‘Equitable estoppel suspends the
running of the statute of limitations during any period in which the defendant took active steps to
prevent the plaintiff from suing.’” Barry Aviation Inc. v. Land O’Lakes Municipal Airport
Comm’n, 377 F.3d 682, 689 (7th Cir. 2004) (quoting Singletary v. Cont’l Ill. Nat. Bank & Trust
Co. of Chi., 9 F.3d 1236, 1241 (7th Cir. 1993)). Equitable tolling is less generous; it merely
“permits the deferral of suit until the tolling event ceases and requires diligent action thereafter.”
Prime Eagle Group Ltd. v. Steel Dynamics, Inc., 614 F.3d 375, 379 (7th Cir. 2010). The Court
has already concluded Prof. Ortony’s claim accrued June 25, 2007. Prof. Ortony has also alleged
that on July 30, 2007, the Provost told him that retirement was merely an option, not a
requirement. It was not until February 17, 2011, according to Prof. Ortony’s allegations, that he
was again told that he was expected to retire on August 31, 2012. If Prof. Ortony could establish
equitable estoppel such that the statute of limitations would be suspended from July 30, 2007
through February 17, 2011, then the deadline for filing his charge of discrimination would be
November 9, 2011. If Prof. Ortony could establish equitable tolling, the deadline would be even
earlier. It is clear from the pleadings that Prof. Ortony did not file his charge by November 9,
-8-
2011. Thus, it is clear from the pleadings that, even if either equitable tolling or equitable
estoppel applies, Prof. Ortony’s claim is time-barred.
Prof. Ortony has alleged and thus admitted the elements of defendant’s statute of
limitations affirmative defense. Accordingly, Count I is dismissed with prejudice.
B.
Plaintiff’s state law claim for breach of contract
The Court has supplemental jurisdiction over plaintiff’s remaining claim for breach of
contract. Because the Court has disposed of the only claim over which it had subject-matter
jurisdiction, the Court exercises its discretion to dismiss the remaining state claim without
prejudice. Wright v. Associated Ins. Cos. Inc., 29 F.3d 1244, 1251 (7th Cir. 1994) (“the general
rule is that, when all federal claims are dismissed before trial, the district court should relinquish
jurisdiction over pendent state-law claims rather than resolving them on the merits.”). Count II
is dismissed without prejudice, and plaintiff is free to file that claim in state court.
IV.
Conclusion
For the reasons set forth above, the Court grants defendant Northwestern University’s
motion to dismiss. Count I is dismissed with prejudice. Count II is dismissed without prejudice.
Case dismissed.
ENTER:
George M. Marovich
United States District Judge
DATED: November 27, 2012
-9-
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?