Jones v. Maywood Melrose Park Broadview School District 89 et al
Filing
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MEMORANDUM OPINION AND ORDER Signed by the Honorable Robert M. Dow, Jr. on 7/10/2017. Mailed notice(cdh, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
CLEON JONES,
Plaintiff,
v.
MAYWOOD MELROSE PARK
BROADVIEW SCHOOL DISTRICT 89,
BOARD OF EDUCATION OF SCHOOL
DISTRICT NO. 89, COOK, ILLINOIS, and
DAVID BRUSAK,
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Case No. 16-cv-09652
Judge Robert M. Dow, Jr.
Defendants.
MEMORANDUM OPINION AND ORDER
Plaintiff Cleon Jones brings claims against Defendants Maywood Melrose Park
Broadview School District 89, Board of Education of School District No. 89, and David Brusak
under the Family and Medical Leave Act, 29 U.S.C. § 2601, et seq. (“FMLA”) and 42 U.S.C.
§ 1983. Before the Court is Defendants’ motion to dismiss for failure to state a claim [9]. For
the reasons set forth below, Defendants’ motion to dismiss [9] is granted in part and denied in
part: the Court denies Defendants’ motion with respect to Plaintiff’s FMLA claims in Count I,
and grants Defendants’ motion with respect to Plaintiff’s due process claims in Count II.
Plaintiff is given until August 11, 2017, to file an amended complaint consistent with this
opinion.1 This case is set for further status hearing on August 23, 2017 at 9:00 a.m.
I.
Background
Plaintiff Cleon Jones formerly worked as a teacher’s assistant for Defendant Melrose
Park Broadview School District No. 89 (“District 89”).
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Plaintiff contends that Defendant
In his response brief, Plaintiff requests leave to file an amended complaint if the Court grants any part of
Defendants’ motion to dismiss. [14, at 11.]
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District 89 is overseen and controlled by Defendant Board of Education of School District
No. 89, Cook, Illinois (“Board of Education”). According to Plaintiff, Defendant Davis Brusak
held the position of Assistant Superintendent of Human Resources at all times relevant to this
lawsuit. [1, at ¶¶ 6–8.]
Plaintiff began his employment with Defendant District 89 in or about 2013. Plaintiff
alleges that in February 2016, Plaintiff applied for FMLA leave to care for his mother, who
recently had been diagnosed with cancer. [Id. at ¶¶ 11–19.] Plaintiff contends that on March 11,
2016, Defendant Brusak sent a letter to Plaintiff indicating that the Board of Education had
approved his FMLA request, “which they dated back to February 23, 2016 and set to end on May
15, 2016.” [Id. at ¶ 20.] Plaintiff asserts that on May 11, 2016, Defendant Brusak sent Plaintiff a
letter indicating that his FMLA leave would expire on May 16, 2016. Plaintiff alleges that
Defendant Brusak also indicated in his letter that despite the fact that Plaintiff had provided
documentation to extend his FMLA time, this extension was not approved. [Id. at ¶ 22.]
Plaintiff alleges upon information and belief that after learning that Plaintiff needed additional
leave time, none of the Defendants approached or discussed with Plaintiff the possibility of an
intermittent or reduced-leave schedule, which Plaintiff alleges was required by Defendant
District 89’s FMLA policy, or a medical leave of absence, which Plaintiff alleges was provided
for in the union contract. [Id. at ¶ 23.]
According to Plaintiff, Defendant Brusak or another agent of Defendants miscalculated
Plaintiff’s FMLA time. Plaintiff contends that Defendant District 89 had a policy regarding
FMLA indicating that an “eligible employee may take FMLA leave for up to a combined total of
12 weeks each 12-month period” and that “[a]ny full workweek period during which the
employee would not have been required to work, including summer break, winter break and
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spring break, is not counted against the employee’s FMLA leave entitlement.” [Id. at ¶¶ 21, 24.]
Plaintiff asserts that twelve weeks from February 23, 2016—the start of his FMLA leave—is
May 17, 2016 (not May 15 or 16, as indicated by Defendants). Plaintiff further asserts that since
spring break (March 25 through April 1) does not count as FMLA leave under Defendants’
policy, his FMLA leave “did not run out until May 24, 2016.” [Id. at ¶ 24.]
Plaintiff did not show up for work or call his employer from Monday, May 16 through
Friday, May 20, or Monday, May 23, 2016. Defendants disciplined Plaintiff for “No Call / No
Show” for these days. [Id. at ¶ 25.] Plaintiff alleges that these No Call / No Shows “were used
by Defendants to terminate Plaintiff’s employment.” [Id. at ¶ 26.] Plaintiff also alleges that he
was not provided with progressive discipline as set forth in Defendant District 89’s Contractual
Agreement with Local No. 73, of which Plaintiff was a member. [Id. at ¶ 27.] Plaintiff contends
that he was placed on administrative leave on May 23, 2016. Plaintiff alleges upon information
and belief that on June 9, 2016, Defendant Board of Education voted on the recommendation for
Plaintiff’s dismissal, and he was terminated. [Id. at ¶ 29.]
On October 11, 2016, Plaintiff brought this suit alleging in Count I that Defendants
violated the FMLA by “unlawfully, intentionally and willfully” interfering with and burdening
Plaintiff’s exercise of his FMLA rights, [id. at ¶ 35], and that Defendants considered Plaintiff’s
FMLA time as a negative factor against him in moving for his termination, [id. at ¶ 37]. In
Count II, Plaintiff alleges that Defendants violated his procedural and substantive due process
rights under the Fourteenth Amendment by failing to provide step discipline and “fast tracking
termination of Plaintiff’s employment with Defendants.” [Id. at ¶ 43.] On December 9, 2016,
Defendants filed a motion to dismiss. [10.]
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II.
Legal Standard
To survive a Federal Rule of Civil Procedure (“Rule”) 12(b)(6) motion to dismiss for
failure to state a claim upon which relief can be granted, the complaint first must comply with
Rule 8(a) by providing “a short and plain statement of the claim showing that the pleader is
entitled to relief,” Fed. R. Civ. P. 8(a)(2), such that the defendant is given “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 Conley v. Gibson, 355 U.S. 41, 47 (1957)) (alteration in original). Second,
the factual allegations in the complaint must be sufficient to raise the possibility of relief above
the “speculative level.” E.E.O.C. v. Concentra Health Servs., Inc., 496 F.3d 773, 776 (7th Cir.
2007) (quoting Twombly, 550 U.S. at 555). “A pleading that offers ‘labels and conclusions’ or a
‘formulaic recitation of the elements of a cause of action will not do.’” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 555). Dismissal for failure to state a claim
under Rule 12(b)(6) is proper “when the allegations in a complaint, however true, could not raise
a claim of entitlement to relief.” Twombly, 550 U.S. at 558. In reviewing a motion to dismiss
pursuant to Rule 12(b)(6), the Court accepts as true all of Plaintiff’s well-pleaded factual
allegations and draws all reasonable inferences in Plaintiff’s favor. Killingsworth v. HSBC Bank
Nevada, N.A., 507 F.3d 614, 618 (7th Cir. 2007). The Court reads the complaint and assesses its
plausibility as a whole. See Atkins v. City of Chi., 631 F.3d 823, 832 (7th Cir. 2011).
III.
Analysis
A.
Count I: FMLA
Under the FMLA, an eligible employee is entitled to as many as twelve weeks of leave
per year for a variety of reasons, including “to care for the spouse, or a son, daughter, or parent,
of the employee, if such spouse, son, daughter, or parent has a serious health condition.”
29 U.S.C. § 2612(a)(1)(C); see also Scruggs v. Carrier Corp., 688 F.3d 821, 825 (7th Cir. 2012).
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In Count I, Plaintiff alleges FMLA interference in violation of 29 U.S.C. § 2615(a)(1) and
FMLA retaliation in violation of 29 U.S.C. § 2615(a)(2).
1.
FMLA Interference
The FMLA prohibits employers from interfering with, restraining, or denying the
exercise of a right under the FMLA. 29 U.S.C. § 2615(a)(1); 29 C.F.R. § 825.220(a)(1). To
state a claim for FMLA interference, the plaintiff must allege the following: (1) the employee
was eligible for FMLA protection; (2) the employer was covered by the FMLA; (3) the
employee was entitled to leave under the FMLA; (4) the employee provided sufficient notice of
his intent to take FMLA leave; and (5) the employer denied the employee FMLA benefits to
which he or she was entitled. Righi v. SMC Corp., 632 F.3d 404, 408 (7th Cir. 2011); Ryan v.
Pace Suburban Bus Div. of Reg’l Transp. Auth., 837 F. Supp. 2d 834, 838–39 (N.D. Ill. 2011).
Here, Plaintiff properly alleges facts supporting the first four required elements since he
contends that he applied for and was approved for FMLA leave. See Ryan, 837 F. Supp. 2d at
839 (concluding that plaintiff properly alleged facts supporting the first four elements since he
took leave under the FMLA). Plaintiff also has satisfied the fifth element by alleging that he was
entitled to one more week of FMLA leave (May 17 through May 24, 2016) and that Defendants
denied him this twelfth week of FMLA leave by improperly counting spring break towards his
FMLA leave. See 29 C.F.R. § 825.200(h) (“[I]f for some reason the employer’s business activity
has temporarily ceased and employees generally are not expected to report for work for one or
more weeks (e.g., a school closing two weeks for the Christmas/New Year holiday or the
summer vacation [ ]), the days the employer’s activities have ceased do not count against the
employee’s FMLA leave entitlement.”). Thus, Plaintiff states a plausible claim for FMLA
interference.
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Defendants argue that Plaintiff has failed to allege that he is an eligible employee under
the FMLA. An employee is eligible for FMLA protection if he has been employed “(i) for at
least 12 months by the employer with respect to whom leave is requested under section 2612 of
this title; and (ii) for at least 1,250 hours of service with such employer during the previous 12month period.” 29 U.S.C. § 2611(2)(a). Defendants argue that Plaintiff has failed to allege that
he performed the requisite amount of hours of service during the twelve month period prior to
seeking FMLA leave. This argument fails because Plaintiff alleges that he was entitled to,
applied for, and was approved for FMLA leave. That allegation suffices to plead that Plaintiff is
an eligible employee.
Next, Defendants argue that Plaintiff “offers no allegations that would support his claim
that he was entitled to FMLA leave beyond May 15, 2016.” However, Plaintiff clearly alleges
that Defendants miscalculated his FMLA by not taking spring break into consideration and that
he was entitled to FMLA leave through May 24, 2017. See Bertrand v. City of Lake Charles,
2012 WL 1596706, at *5 (W.D. La. May 3, 2012) (holding that defendant employer interfered
with plaintiff employee’s rights under the FMLA by improperly counting holidays against her
leave entitlement and explaining that “[i]n general, only time during which the employee was
otherwise scheduled to work may be counted as FMLA leave”).
Defendants also make several arguments related to Plaintiff’s request for an extension of
FMLA leave. According to Defendants, Plaintiff fails to allege (1) that he was an eligible
employee at the time he requested an extension of FMLA leave, and (2) that he provided
sufficient notice of his intent to take FMLA leave “for the additional dates after his approved
leave ended.” However, these arguments miss the mark. Plaintiff’s allegations are not premised
on Defendants’ denying Plaintiff’s request for an extension of FMLA leave; rather Plaintiff
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alleges that he was improperly denied a twelfth week of FMLA leave to which he was entitled
when he applied for and was approved for FMLA leave in the first instance.
Therefore,
Defendants’ motion to dismiss Plaintiff’s claim of FMLA interference is denied.
2.
FMLA Retaliation
The FMLA also prohibits employers from discharging or otherwise discriminating
against employees for exercising their rights under the FMLA. 29 U.S.C. § 2615(a)(2); 29
C.F.R. § 825.220(a)(2); see also Carter v. Chicago State Univ., 778 F.3d 651, 657 (7th Cir.
2015). An employer may not consider the taking of FMLA leave as a negative factor in
employment actions. 29 C.F.R. § 825.220(c); King v. Preferred Tech. Grp., 166 F.3d 887, 891
(7th Cir. 1999). To state a claim for FMLA retaliation, the plaintiff must allege the following:
(1) he or she engaged in a statutorily protected activity; (2) he or she suffered an adverse action;
and (3) a causal link between the protected activity and the adverse action. Ryan, 837 F. Supp.
2d at 839.
Here, it is undisputed that Plaintiff satisfied the first two elements. Plaintiff sufficiently
alleges that he engaged in a statutorily protected activity by taking FMLA leave, and he
sufficiently alleges that he suffered an adverse action when he was terminated on June 9, 2016.
Defendants argue, however, that Plaintiff has not pled the requisite causal connection because he
has not sufficiently alleged that his termination was motivated by an impermissible retaliatory
animus. This argument fails because Plaintiff alleges that Defendants miscalculated his FMLA
time and “used the remainder of Plaintiff’s FMLA time to discipline him for No Call/No Show
on May 16–May 20, 2016 and May 23, 206,” [1, at ¶ 24], that Defendants “considered Plaintiff’s
FMLA time as a negative factor against him in moving for his termination,” [id. at ¶ 37], and
that “[t]here exists a causal link between Plaintiff availing himself of FMLA rights and the
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subsequent harassment, retaliation, and termination suffered by the Plaintiff” [id. at ¶ 39].
Therefore, Defendants’ motion to dismiss Plaintiff’s claim of FMLA retaliation is denied.
B.
Count II: Due Process
In Count II, Plaintiff brings a claim of violation of his procedural and substantive due
process rights pursuant to 42 U.S.C. § 1983 and the Fourteenth Amendment of the U.S.
Constitution. Plaintiff alleges that Defendants failed to provide him with progressive discipline
as set forth in Defendant District 89’s Contractual Agreement with Local No. 73, of which
Plaintiff was a member. [1, at ¶ 27.]
1.
Procedural Due Process
To state a claim for a violation of procedural due process, a plaintiff must allege “(1) a
deprivation of a protected interest, and (2) insufficient procedural protections surrounding the
deprivation.”
Michalowicz v. Vill. of Bedford Park, 528 F.3d 530, 534 (7th Cir. 2008).
Defendants do not challenge whether Plaintiff has sufficiently alleged a deprivation of a
protected interest; however, Plaintiff still must satisfy both prongs to properly state a claim. 2
Property interests are not created by the Constitution but are instead derived from
independent sources, such as state law. Johnson v. City of Fort Wayne, Ind., 91 F.3d 922, 943
(7th Cir. 1996). Because Plaintiff was employed in Illinois, the Court looks to Illinois law to
determine whether he had a protected property interest in his employment. Moss v. Martin, 473
F.3d 694, 700 (7th Cir. 2007). Under Illinois law, a person has a property interest in his job
where he has a legitimate expectation of continued employment based on a legitimate claim of
entitlement. Covell v. Menkis, 595 F.3d 673, 676 (7th Cir. 2010). “To show a legitimate
Defendants argue that Plaintiff’s procedural and substantive due process claims should be dismissed
because the procedural protections provided in the collective bargaining agreement are adequate and
because Plaintiff has failed to state a claim for substantive due process. [10, at 8–11.] Since the Court
concludes that Plaintiff has not sufficiently alleged a deprivation of a protected interest, the Court need
not address Defendants’ additional arguments.
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expectation of continued employment, a plaintiff must show a specific ordinance, state law,
contract or understanding limiting the ability of the state or state entity to discharge him.” Moss,
473 F.3d at 700 (citation and internal quotation marks omitted). The presumption in Illinois is
that employment is at-will. Rujawitz v. Martin, 561 F.3d 685, 688 (7th Cir. 2009).
Applying that controlling law to the case at hand, Plaintiff fails to allege that he
legitimately expected that his employment would continue based on a specific ordinance, state
law, contract, or understanding limiting the ability of Defendants to discharge him. Thus,
Plaintiff fails to adequately allege that he had a property interest in his continued employment,
and his procedural due process claim must be dismissed. See O’Gorman v. City of Chicago, 958
F. Supp. 2d 928, 937–39 (N.D. Ill. 2013), aff’d, 777 F.3d 885 (7th Cir. 2015) (explaining that
plaintiff failed to adequately allege that he had a property interest in continuing employment or
reinstatement where plaintiff “cite[d] no ordinance or state law, and fail[ed] to identify a written
contract, to support his property interest” in continuing employment or reinstatement).
2.
Substantive Due Process
Plaintiff also asserts a substantive due process claim. The scope of protections afforded
by substantive due process is very limited and applies only to decisions affecting fundamental
rights. See Belcher v. Norton, 497 F.3d 742, 752 (7th Cir. 2007). As explained above Plaintiff
fails to adequately allege that he had a property interest in his continued employment. Further,
employment rights are state-created rights, and an employee’s interest in maintaining
employment is not a fundamental right protected by substantive due process. See Montgomery v.
Stefaniak, 410 F.3d 933, 939 (7th Cir. 2005) (explaining that plaintiff’s claim that defendants
wrongfully terminated her employment was insufficient to state a substantive due process claim
since plaintiff did not allege that defendants violated some other constitutional right or that
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available state remedies are inadequate); Zorzi v. County of Putnam, 30 F.3d 885, 895 (7th Cir.
1994) (explaining that substantive due process does not protect occupational liberty); Weissbaum
v. Hannon, 439 F. Supp. 869, 873 (N.D. Ill. 1976) (explaining that since non-tenured teacher had
no property interest entitling him to procedural due process, there was no greater right to
substantive due process); see also Silva v. Bieluch, 351 F.3d 1045, 1048 (11th Cir. 2003)
(“Because employment rights are state-created rights and are not ‘fundamental’ rights created by
the Constitution, they do not enjoy substantive due process protection.”); Nicholas v. Penn. State
Univ., 227 F.3d 133, 142 (3d Cir. 2000) (holding that tenured public employment not a
fundamental property interest entitled to substantive due process protection and collecting cases).
Thus, the Court grants Defendants’ motion to dismiss Plaintiff’s substantive due process claim.3
IV.
Conclusion
For the foregoing reasons, the Court denies Defendants’ motion to dismiss [9] with
respect to Plaintiff’s FMLA claims in Count I, and grants Defendants’ motion with respect to
Plaintiff’s due process claims in Count II. Plaintiff is given until August 11, 2017, to file an
amended complaint consistent with this opinion, if Plaintiff believes that he can overcome the
deficiencies identified above. This case is set for further status hearing on August 23, 2017 at
9:00 a.m.
Dated: July 11, 2017
_________________________________
Robert M. Dow, Jr.
United States District Judge
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Since the Court concludes that Plaintiff fails to adequately allege that he had a property interest in his
continued employment, the Court need not address Defendants’ other arguments as to why Plaintiff’s due
process claims should be dismissed.
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