Matavka v. J. Sterling Morton High School District 201 et al
Filing
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MEMORANDUM Opinion and Order. Signed by the Honorable Milton I. Shadur on 8/1/2016: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.
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Case No. 15 C 10330
MEMORANDUM OPINION AND ORDER
Lubomir Matavka ("Matavka") initially filed a 12-count Complaint against his former
employer, Board of Education of J. Sterling Morton High School District 201, 1 and two of its
employees (both in the supervisory chain above Matavka), asserting (1) claims of employment
discrimination under Title VII and (2) claims of constitutional violations assertedly actionable
under 42 U.S.C. § 1983 ("Section 1983"). When defendants moved to dismiss Matavka's
Complaint under Fed. R. Civ. P. ("Rule") 12(b)(6), this Court accepted their argument that the
Section 1983 claims were barred by limitations, and Matavka then filed an Amended Complaint
that dropped all nine counts grounded in Section 1983 and reiterated his Title VII claims in the
three surviving counts, at the same time correcting the misnomer referred to n.1 of this opinion.
1
As the initial motion to dismiss Matavka's Complaint pointed out, under Illinois law the
Board of Education of such a school district is the appropriate defendant with the exclusive right
to sue or be sued. After Matavka's error in having named the School District rather than its
Board as the defendant in his original Complaint was pointed out, he corrected that mistake in
his Amended Complaint. For convenience this opinion will refer to his targeted defendant
simply as "Morton High."
As appalling as was the conduct ascribed to Matavka's coworkers and supervisors as set
out in this Court's May 31, 2016 memorandum order (the "May 31 Order") that has been
attached to this opinion, Morton High's view is that the very nature of such conduct "dooms
Matavka's recovery because harassment based on sexual orientation is not actionable under Title
VII" (this quotation is taken from the May 31 Order). As the May 31 Order went on to explain,
Morton High's motion to dismiss the Amended Complaint was placed on the back burner
because our Court of Appeals then had a fully briefed and orally argued case before it that posed
the same problem -- a case whose resolution was complicated by the ferment as to the scope and
meaning of the word "sex" in Title VII that had been generated by the EEOC's July 15, 2015
reversal of its position on that subject. Because it is of course impossible to gauge from the
outside the length of time that may be needed to produce an opinion from any appellate court -as Abraham Lincoln famously responded to an exclamation about how long-legged he was, his
legs were "long enough to reach the ground" -- in this instance the time elapsed since the
September 30, 2015 oral argument in Hively v. Ivy Tech Comty. Coll. had already spanned
seven months when this Court issued the May 31 Order.
In another instance of the serendipity encountered from time to time in connection with
matters pending before a District Judge, the decision in Hively (cited here as "Hively at --,"
referring to pages of the Court of Appeals' slip opinion) was issued on July 28 -- just one day
before the 9 a.m. July 29 status hearing date that this Court had arbitrarily chosen to discuss the
stay that this Court had placed on Morton High's motion to dismiss. This opinion turns then to
the impact of Hively on the previously stayed motion.
Briefly put, Parts I and II.A of Judge Rovner's opinion for the Hively panel occupied just
9 pages in adhering to the Seventh Circuit's repeated holdings "that the Title VII prohibition on
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discrimination based on 'sex' extends only to discrimination based on a person's gender, and not
that aimed at a person's sexual orientation" (Hively at 4), going back to the three-decade-old
dictum in Ulane v. Eastern Airlines, Inc., 742 F.2d 1081, 1084 (7th Cir. 1984) that "homosexuals
and transvestites do not enjoy Title VII protection." In particular Part II.A cited, quoted and
adhered to the Hamner and Spearman cases that had been cited by Morton High and that were
also cited and quoted in the May 31 Order as exemplary of the Seventh Circuit's repeated
reconfirmation of the Ulane ukase.
With this Court of course bound to follow our Court of Appeals' precedential decision, it
could well say, as Hively at 9 did immediately following its Part II.A, "We could end the
discussion there" and simply grant Morton High's motion to dismiss. But something more must
be said in light of the quite remarkable 33-page exposition and analysis set out in Hively's Part
II.B by Judge Rovner, joined by panel member Judge Bauer. 2
As stated earlier, the EEOC has announced its reconsideration of the proper reading of
the word "sex" in Title VII (a change of position that is not of course binding on the federal
judiciary). But it is not alone in its desire to conform the law to the changes in public perception
that have created judicial turmoil because Congress has been unresponsive to the widespread
sense that public opinion no longer subscribes to the constricted mindset reflected in the
earlier-quoted dictum from Ulane.
As Hively at 5 states, stare decisis principles call for the result reached there by the Court
of Appeals (and of course basic jurisprudential principles compel a District Court's adherence to
its Court of Appeals' precedential rulings). Stare decisis is not however immutable -- perhaps the
2
Judge Ripple, the third member of the Hively panel, joined the Court's judgment and, in
doing so, joined Parts I and II.A (but not Part II.B) of the panel's opinion.
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most noteworthy example of our time has been the unanimous decision of the Supreme Court in
Brown v. Bd. of Educ., 347 U.S. 483 (1954). But the Supreme Court's overturning of the
long-lived "separate but equal" doctrine in that case was a matter of reversing course in a judicial
reading of the Constitution -- a matter quite different from altering the established judicial
reading of a word contained in congressional legislation.
Whether that is a principled distinction may perhaps be subject to debate, but one
possible rationale suggests itself. While the late Justice Anthony Scalia sought to portray
himself as a staunch advocate of adhering to what he viewed as the original intent of
constitutional language, he did not acknowledge that to change the original meaning of the word
"arms" in the Second Amendment, as he did, was an exercise in revisionist history -- and despite
his announced disdain for those who speak of a "living Constitution" in justifying changes in the
judicial reading of that document, what amounted to his effective application of the "living
Constitution" approach in the Second Amendment context could well have reflected a
recognition that amending the Constitution is far more difficult in real world terms than
amending a statute.
What has just been said here might be viewed as a digression because it is not necessary
to this opinion's earlier announced outcome. But it has been occasioned by the thoughtful and
extensive discussion in Hively's Part II.B of the dilemma reflected in the struggles by District
Courts such as this one, and by Courts of Appeals as well, in addressing the problems
exemplified by this case.
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Conclusion
For the reasons stated here, Morton High's Rule 12(b)(6) motion is granted and the
Complaint is dismissed. And because this Court finds unpersuasive the earlier effort by
Matavka's counsel to reshape the straightforward allegations of the Amended Complaint, which
describe the disgusting conduct to which Matavka was subjected, into a different mold that might
perhaps survive the flat-out holding in Hively, Matavka's action is dismissed as well.
__________________________________________
Milton I. Shadur
Senior United States District Judge
Date: August 1, 2016
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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,
ATTACHMENT
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
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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).
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