Adams v. Board of Education Harvey School District 152 et al

Filing 33

MEMORANDUM Opinion and Order Signed by the Honorable Sharon Johnson Coleman on 5/6/2016:Mailed notice(rth, )

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
DR. DENEAN ADAMS,

)
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Plaintiff,
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v.
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BOARD OF EDUCATION HARVEY SCHOOL )
DISTRICT 152, GLORIA JOHNSON, in her
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individual capacity, BETTY JOHNSON, in her
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individual capacity, DR. KISHA MCCASKILL, in
)
her individual capacity, JANET ROGERS, in her
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individual capacity, TYRONE ROGERS, in his
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individual capacity, LINDA HAWKINS, in her
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individual capacity, FELICIA JOHNSON, in her
)
individual capacity, CITY OF HARVEY, DENARD )
EAVES, in his individual capacity, and DET. R.
)
WRIGHT, in his individual capacity,
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)
Defendants.
)

Case No. 15 cv 8144
Judge Sharon Johnson Coleman

MEMORANDUM OPINION AND ORDER
Plaintiff, Dr. Denean Adams, filed a four-Count Complaint alleging various claims stemming
from her employment as Superintendent of Harvey School District 152 and rescission of her
employment contract. Defendants, Board of Education Harvey School District 152, Gloria Johnson,
Betty Johnson, Dr. Kisha McCaskill, Janet Rogers, Tyrone Rogers, Linda Hawkins, and Felicia
Johnson (collectively “the Board defendants”), move to dismiss Count III for failure to state a claim
for intentional infliction of emotional distress (“IIED”) [17]. Defendants, City of Harvey, Denard
Eaves, and Detective Wright (collectively “the Harvey defendants”), move to dismiss Count IV of
the complaint for failure to state a claim for a violation of plaintiff’s constitutional rights, conspiracy
and retaliation [22]. For the reasons set forth below, this Court grants the motions.

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Background
The following facts are accepted as true for purposes of ruling on the pending motions.
Plaintiff, Denean Adams, is an educator employed as the Superintendent of Harvey Public School
District 152 for a three-year term from July 1, 2013, to June 30, 2016. The individual Board
defendants: Gloria Johnson, Betty Johnson, Kisha McCaskill, Janet Rogers, Tyrone Rogers, Linda
Hawkins, and Felicia Johnson, are all members of the Board of Education Harvey School District
152. Defendant, Denard Eaves is the Acting Chief of Police for the City of Harvey Police
Department, and Detective R. Wright is a police detective with the Harvey Police Department.
Adams alleges that her predecessor, Eric Kellogg, who served both as school Superintendent
and Mayor of the City of Harvey simultaneously, was given a pay and benefit package worth an
estimated $300,000, as voted on by the Board. The pay and benefit package could not be extended
by the Board unless the Superintendent met specific goals for student achievement and teacher
development. This agreement required the Superintendent to report to the Board annually regarding
these benchmarks.
On February 19, 2015, Adams was given a favorable review in the Board’s Performance
Evaluation for the 2014-2015 school year. The Board voted to approve a 1-year extension of
Adams’ contract on February 23, 2015. In May 2015, Adams approached the Board with some
concerns about possible financial irregularities with the use of State and Federal funds. She asked the
Board to approve a forensic audit of the District’s finances after uncovering over $500,000 in
potentially misused funds. The Board authorized Adams to prepare a proposal for hiring a forensic
auditor. At the June 2015, Board retreat no issues were raised about Adams’ job performance.
On July 9, 2015, Adams sent the Board a draft proposal to hire an Auditor. Defendant and
Board member, Tyrone Rogers, called Adams after reading the proposal and told Adams she was
“itching for an ass-kicking.” The following day, Adams went to the Harvey Police Department and
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met with Detective R. Wright to discuss filing a criminal complaint against Rogers. She informed
Detective Wright that she wanted to bring the matter before the Board prior to filing formal
charges. Adams told Board President Gloria Johnson what had happened, and Johnson said she
would take it up with the full Board. Adams returned to Harvey Police on July 13, 2015, when she
had heard nothing from the Board. Detective Wright informed Adams that she could not file
criminal complaint.
On July 22, 2015, the Board held its monthly meeting. Adams was summoned to a closed
session at the meeting, where the Board informed her that they had several issues with her job
performance and that the Board was considering rescinding the one-year extension on her contract.
The Board voted to rescind the contract on August 17, 2015, stating that Adams had failed to meet
expectations.
Adams filed a four-Count Complaint on September 16, 2015, alleging retaliation in violation
of her First Amendment rights and due process rights against the Board defendants. She also alleged
intentional infliction of emotional distress by the Board defendants and retaliation in violation of her
First Amendment rights against the Harvey defendants.
Legal Standard
To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a complaint
must contain sufficient factual allegations to state a claim for relief that is plausible on its face.
Ashcroft v. Iqbal, 556 U.S. 62, 678 (2009). The complaint requires only “a short and plain statement
of the claim showing that the pleader is entitled to relief…to give the defendant fair notice of what
the…claim is and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007)(quoting Fed. R. Civ. P. 8(a)(2)). The plaintiff does not need to provide detailed factual
allegations, but must provide enough factual support to raise his right to relief above a speculative
level. Id. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory
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statements” are insufficient to withstand a motion to dismiss. Iqbal, 556 U.S. at 678. When
reviewing a motion to dismiss, the court must accept all well-pleaded factual allegations as true and
draw all reasonable inferences in the plaintiff’s favor. Erickson v. Pardus, 551 U.S. 89, 94 (2007);
Pisciota v. Old Nat. Bancorp, 449 F.3d 629, 633 (7th Cir. 2007).
Discussion
1. Motion to Dismiss Count III – Intentional Infliction of Emotional Distress by the Board Defendants
Adams claims that the Board defendants intentionally inflicted emotional distress when one
of their members, Tyrone Rogers, verbally threatened her over the telephone and the remainder of
the Board failed to address the threat and rescinded her contract when she tried to file a police
report against Tyrone Rogers. The Board moves to dismiss, arguing that Adams cannot state a claim
for intentional infliction of emotional distress for a single verbal threat.
To state a claim for IIED, Adams must: (1) conduct that is extreme and outrageous; (2) the
actor either intends, or knows that there is at least a high probability that his conduct will cause
severe emotional distress; and (3) the conduct does, in fact, cause severe emotional distress. McGrath
v. Fahey, 126 Ill. 2d 78, 86, 533 N.E. 2d 806 (1988). The Illinois Supreme Court has held that to form
the basis for an IIED claim, the outrageous conduct must extend beyond “mere insults, indignities,
threats, annoyances, petty oppressions, or trivialities.” Public Finance Corp. v. Davis, 66 Ill. 2d 85, 8990, 360 N.E.2d 765, 767 (1976). Illinois courts follow the Restatement (Second) of Torts:
It has not been enough that the defendant has acted with an intent which is tortious
or even criminal, or that he has intended to inflict emotional distress, or even that his
conduct has been characterized by ‘malice,’ or a degree of aggravation which would
entitle the plaintiff to punitive damages for another tort. Liability has been found
only where the conduct has been so outrageous in character, and so extreme in
degree, as to go beyond all possible bounds of decency… Restatement (Second) of Torts
sec. 46, comment d (1965).
The law intervenes only where the distress inflicted is so severe that no reasonable
man could be expected to endure it. The intensity and duration of the distress are
factors to be considered in determining its severity. Comment j. See also Prosser, Law
of Torts, sec. 12, at 54 (4th ed. 1971). Public Finance Corp., 66 Ill. 2d at 90; Kelly v.
Franco, 72 Ill. App. 3d 642, 648, 391 N.E.2d 54 (1st Dist. 1979).
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In Kelly v. Franco, the plaintiffs alleged “threats by defendants and their children to force the
plaintiffs to move from the neighborhood, calls to [the] plaintiffs’ home which resulted in the callers
hanging up when the phone was answered, and complaints to the police against Luke Kelly on trivial
matters.” Kelly, 72 Ill. App. 3d at 648. In that case, the court held that the plaintiffs had not stated a
claim for IIED because the conduct alleged was not sufficiently outrageous because it did not
extend beyond mere indignities or threats. Id. at 648-49.
In this case, Adams alleges only one instance of a verbal threat made over the telephone by
one defendant, Tyrone Rogers. Although Adams alleges that she was disturbed enough by the
telephone call and Rogers’ stating that Adams was “itching for an ass-kicking” to go to the police,
her own complaint states that she wanted to discuss the incident with the Board before filing a
formal complaint against Rogers. The threat alone does not rise to the level of extreme and
outrageous.
In some instances conduct may be considered extreme based on the degree of power or
authority that the defendant has over the plaintiff. “The more control which a defendant has over
the plaintiff, the more likely that defendant’s conduct will be deemed outrageous, particularly when
the alleged conduct involves either a veiled or explicit threat to exercise such authority or power to
plaintiff’s detriment.” McGrath, 126 Ill. 2d at 86-87. Even in concert with the subsequent rescission
of Adams’ contract extension, the alleged conduct is not sufficiently extreme that it goes beyond the
bounds of decency despite the lack of professionalism. Adams argues that the Board as a whole
heightened her anxiety by threatening to rescind her contract extension, then actually rescinding it,
threatening to fire her, and publicly announcing that Adams had been disciplined. If these facts were
sufficient to state a claim for IIED, then nearly every instance of an employee being summarily
dismissed or publicly reprimanded would raise a valid claim for IIED.

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The Illinois courts refer to the severity of conduct as a “stringent standard” that is met
where the conduct has “a coercive factor, such as an employer’s attempt to cause an employee to
commit an illegal act, or the existence of a pattern of harassment involving extreme and continuous
calls and letters of a threatening and profane or obscene nature.” Giraldi v. Lamson, 205 Ill. App. 3d
1025, 1028, 563 N.E.2d 956 (1st Dist. 1990) (citing Milton v. Illinois Bell Telephone Co., 101 Ill. App. 3d
75, 427 N.E.2d 829 (1981); Sherman v. Field Clinic, 74 Ill. App. 3d 21, 392 N.E.2d 154 (1979); Grey v.
First National Bank, 169 Ill. App. 3d 936, 943, 523 N.E.2d 1138 (1988)). Adams relies on Johnson v.
Federal Reserve Bank of Chicago to support her claim that the Board’s conduct was an abuse of power
amounting to extreme and outrageous conduct. Johnson fits the profile of cases where the employee
plaintiff is coerced into committing an illegal act. Johnson v. Federal Reserve Bank of Chicago, 199 Ill.
App. 3d 427, 557 N.E.2d 328, 331 (1st Dist. 1990). In that case, the plaintiff was instructed by his
employer to conceal the fact that his employer was violating federal banking regulations and then
engaged in a pattern of retaliatory actions and harassment as punishment for his refusal to comply.
Id. at 330. The situation alleged in this case involves neither a pattern of harassment nor coercion by
Adams’ employer to commit an illegal act. It is simply one threatening and unprofessional remark to
which she understandably took offense made over the telephone that was not carried out and
culminated in the Board rescinded Adams’ contract. These allegations do not amount to an IIED
claim against either Rogers alone or the whole Board.

2. Motion to Dismiss Count IV – Constitutional Violation by the Harvey Defendants
Defendants, City of Harvey, Denard Eaves, and Detective Wright, move to dismiss Count
IV of Adams’ Complaint, arguing that Adams fails to state a claim for a free speech violation.
Adams asserts that the defendants prevented her from filing a criminal complaint against Rogers.

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On the basis of this incident, Adams claims both individual liability for Eaves and Wright as well as
municipal liability for the City of Harvey.
In order to state a claim based on a violation of her free speech rights, Adams must allege
“(1) that speech she engaged in was constitutionally protected under the circumstances, Connick v.
Myers, 461 U.S. 138, 75 L. Ed. 2d 708, 103 S. Ct. 1684 (1983); and (2) that defendants retaliated
against her because of that speech. Mt. Healthy City School Dist. v. Doyle, 429 U.S. 274, 287, 50 L. Ed.
2d 471, 97 S. Ct. 568 (1977).” Barkoo v. Melby, 901 F.2d 613, 617 (7th Cir. 1990). Adams’ Complaint
satisfies neither prong.
Adams claims that the Harvey police and its officers retaliated against her by denying her
request to file a criminal complaint against Tyrone Rogers for his threat. She contends her attempt
to have Tyrone Rogers’ arrested is protected speech on a matter of great public concern. As a public
employee, Adams could not be terminated or have her contract rescinded for speaking out on a
matter of great public concern. Pickering v. Bd. of Educ. of Twp. High Sch. Dist. 205, Will Cnty., 391 U.S.
563, 574, 88 S. Ct. 1731, 20 L. Ed. 2d 811 (1968). “The Supreme Court has defined ‘public concern’
to mean ‘legitimate news interest,’ or ‘a subject of general interest and of value and concern to the
public at the time of publication.’” Meade v. Moraine Valley Cmty. College, 770 F.3d 680, 684 (7th Cir.
2014) (quoting City of San Diego v. Roe, 543 U.S. 77, 83-84, 125 S. Ct. 521, 160 L. Ed. 2d 410 (2004)
(per curiam)). Adams alleged speech, informing the police of the verbal threat made against her after
she tried to have independent audit of the school board, is a matter of public concern.
However, neither Eaves and Wright nor the Harvey Police Department were Adams’
employers capable of rescinding her contract and therefore her complaint fails the second prong.
The police are not required to pursue every report. Moreover, the police lack the authority to charge
defendant Rogers with any crime. Adams argues that defendants are improperly raising an
affirmative defense by asserting that they lacked the power to have Rogers arrested and charged.
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When the allegations of the complaint itself set forth everything necessary to satisfy an affirmative
defense, dismissal is appropriate. United States v. Lewis, 411 F.3d 838, 842 (7th Cir. 2005). Even if this
Court puts aside this defense, the retaliatory conduct of which Adams complains is unclear. Based
on the facts alleged in the Complaint, the only retaliatory conduct alleged appears to be rescission of
her contract extension. None of the Harvey defendants had personal involvement with that conduct,
which is necessary to sustain a claim under 42 U.S.C. §1983.
Adams also alleges municipal liability under Monell v. New York City Dept. of Social Services, 436
U.S. 658 (1978). To state a claim against the City of Harvey, Adams must allege that Eaves acted
pursuant to a municipal custom, policy, or practice. Monell, 436 U.S. at 691; Wragg v. Vill. of Thornton,
604 F.3d 464, 467 (7th Cir. 2010). “To establish an official policy or custom, a plaintiff must show
that his constitutional injury was caused by (1) the enforcement of an express policy of the [city], (2)
a widespread practice that is so permanent and well settled as to constitute a custom or usage with
the force of law, or (3) a person with final policymaking authority.” Wragg, 604 F.3d at 467. Adams’
claimed constitutional injury is that Wright and Eaves, as acting Chief of Police with final
policymaking authority, blocked her from filing a criminal complaint against Rogers. This is
insufficient to state a claim for municipal liability. The Complaint simply alleges that “Wright and
Eaves” blocked her from filing a criminal complaint. This allegation is simply a conclusion. 1 The
allegation does not indicate Eaves role or anything more than a bare “the defendant harmed me”
accusation. See Iqbal, 556 U.S. at 678.

Defendants attached the police reports as exhibits to their motion to dismiss, though this Court has not considered
them for purposes of ruling this motion. See Dkt. 22-1.

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Conclusion
Based on the foregoing discussion, this Court grants the Board defendants’ Motion to
Dismiss Count III [17] and grants the Harvey defendants’ Motion to Dismiss Count IV [22].
IT IS SO ORDERED.
Date: May 6, 2016

Entered: _____________________________
SHARON JOHNSON COLEMAN
United States District Judge

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