Matavka v. J. Sterling Morton High School District 201 et al

Filing 29

MEMORANDUM Order: Defendant's motion to dismiss is ordered stayed, and the parties are ordered to appear for a status hearing at 9 a.m. July 29, 2016. Two qualifications are called for: 1. If Hively should be decided in the interim, it is expec ted that either party will bring the matter on before this Court by motion promptly thereafter; or 2. failing such a motion as the status hearing date approaches, this Court will issue a minute order vacating that date and setting a replacement date. Signed by the Honorable Milton I. Shadur on 5/31/2016:Mailed notice(clw, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

LUBOMIR MATAVKA,
Plaintiff,
v.
BOARD OF EDUCATION OF J. STERLING
MORTON HIGH SCHOOL DISTRICT 201,
Defendant.

)
)
)
)
)
)
)
)
)
)

Case No. 15 C 10330

MEMORANDUM ORDER
Board of Education of J. Sterling Morton High High School District 201 ("Morton High")
has filed a Fed. R. Civ. P. ("Rule") 12(b)(6) motion to dismiss the Amended Complaint ("AC")
brought against it by Lubomir Matavka ("Matavka"), in which he seeks recovery for asserted
violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII").
Matavka alleges that while employed by Morton High he experienced severe harassment from
his coworkers and supervisors, including taunts that he was "gay" and should "suck it" (AC
¶ 16), frequent jokes about his perceived homosexuality (AC ¶ 31), the hacking of his Facebook
account to identify him publicly as "interested in "boys and men"" (AC ¶ 33) and an email
stating "U . . . are homosexual" (AC ¶ 37).
In Morton High's view that appalling conduct dooms Matavka's recovery because
harassment based on sexual orientation is not actionable under Title VII. And for that
proposition Morton High can cite -- and has cited -- numerous authorities that bind this Court.
To take just one example, Hamner v. St. Vincent Hosp. & Health Care Ctr., Inc., 224 F.3d 701,

704 (7th Cir. 2000) (internal citations, quotation marks and footnote omitted) put that proposition
in these terms:
The phrase in Title VII prohibiting discrimination based on sex means that it is
unlawful to discriminate against women because they are women and against men
because they are men. In other words, Congress intended the term "sex" to mean
"biological male or biological female," and not one's sexuality or sexual
orientation. Therefore, harassment based solely upon a person's sexual preference
or orientation (and not on one's sex) is not an unlawful employment practice
under Title VII.
Because it is difficult to escape the conclusion that Matavka's harassment was rooted in his
perceived sexual orientation, Hamner -- the holding of which was echoed shortly thereafter by
Spearman v. Ford Motor Co., 231 F.3d 1080, 1085-86 (7th Cir. 2000) -- would appear to bury
Matavka's lawsuit.
But fortunately for Matavka his action may be spared by a recent ruling of the United
States Equal Employment Opportunity Commission ("EEOC") that is prompting reconsideration
of Title VII's breadth. Less than a year ago Baldwin v. Foxx, Appeal No. 0120133080, 2015 WL
4397641, at *10 (July 15, 2015) reversed decades of EEOC guidance in finding persuasively that
discrimination on the basis of sexual orientation is actionable under Title VII:
We further conclude that allegations of discrimination on the basis of sexual
orientation necessarily state a claim of discrimination on the basis of sex. An
employee could show that the sexual orientation discrimination he or she
experienced was sex discrimination because it involved treatment that would not
have occurred but for the individual's sex; because it was based on the sex of the
person(s) the individual associates with; and/or because it was premised on the
fundamental sex stereotype, norm, or expectation that individuals should be
attracted only to those of the opposite sex.
While that ruling does not of course bind this Court, a case argued before our Court of
Appeals on September 30, 2015 and awaiting decision -- Hively v. Ivy Tech Cmty. Coll.,
No. 15-1720 -- is poised to revisit the question whether sexual orientation discrimination is
-2-

indeed sex discrimination in light of Baldwin. Should Hively follow recent district court
decisions 1 in finding Baldwin persuasive, that finding plainly would affect the disposition of
Morton High's motion. That being so, the prudent course at present is to stay this matter pending
the issuance of a decision in Hively -- a decision that should clarify whether Matavka's AC can
be sustained.
Accordingly Morton High's motion is ordered stayed, and the parties are ordered to
appear for a status hearing at 9 a.m. July 29, 2016. Because that date has obviously been chosen
arbitrarily (to avoid any prospect of this case's falling between the figurative tracks), two
qualifications are called for:
1.

If Hively should be decided in the interim, it is expected that either party
will bring the matter on before this Court by motion promptly thereafter;
or

2.

failing such a motion as the status hearing date approaches, this Court will
issue a minute order vacating that date and setting a replacement date.

__________________________________________
Milton I. Shadur
Senior United States District Judge
Date: May 31, 2016

1

See, e.g., Isaacs v. Felder Servs., LLC, 2015 WL 6560655, at *3 (M.D. Ala. Oct. 29);
Videckis v. Pepperdine Univ., 2015 WL 8916764, at *8 (C.D. Cal. Dec. 15).
-3-