Aku v. Chicago Board Of Education et al

Filing 158

MEMORANDUM Opinion and Order Signed by the Honorable John Z. Lee on 11/14/17.Mailed notice(ca, )

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

)
)
Plaintiff,
)
)
v.
)
)
CHICAGO BOARD OF EDUCATION,
)
ATTORNEY REGISTRATION &
)
DISCIPLINARY COMMISSION, BRIAN )
E. CLAUSS, CANNON COCHRAN
)
MANAGEMENT SERVICES, CHICAGO )
TEACHERS UNION, D’ANDRE
)
WEAVER, LAW OFFICES OF
)
BRADLEY DWORKIN, ILLINOIS
)
DEPARTMENT OF HUMAN RIGHTS,
)
ILLINOIS HUMAN RIGHTS
)
COMMISSION, JACK SANKER,
)
MARTAY LAW OFFICE, PARKVIEW
)
ORTHOPAEDIC GROUP, ROBIN
)
POTTER, SEDGWICK CLAIMS
)
MANAGEMENT SERVICES, ROBIN
)
POTTER AND ASSOCIATES, P.C.,
)
)
Defendants.
)

17-cv-1226
Judge John Z. Lee

MEMORANDUM OPINION AND ORDER
Plaintiff Lu Aku (“Aku”) filed this pro se lawsuit against his former employer,
the Board of Education of the City of Chicago (“the Board”), D’Andre Weaver
(“Weaver”), the principal at the school where Aku taught until 2014, and thirteen
other defendants (“Non-Board Defendants”).

Aku claims that the Board

discriminated against him based on his age, sex, color, race, national origin, and
disability in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42
U.S.C. §§ 1981 and 1983, the Americans with Disabilities Act (“ADA”), and the Age

Discrimination in Employment Act (“ADEA”), and retaliated against him for
asserting his rights under those acts. Compl. ¶¶ 9, 10, 12(i), ECF No. 1. Aku
further claims that the Non-Board Defendants—a broad range of parties that
includes, among others, the Chicago Teachers Union, Aku’s former medical provider
and former attorneys, two third-party claims administrators for the Board, and the
Illinois Human Rights Commission—conspired with and aided and abetted the
Board in discriminating and retaliating against him, in violation of Title VII and
the ADA. Id. ¶¶ 12(j), 13(h). The Board 1 moves to dismiss the complaint in part,
pursuant to Federal Rule of Civil Procedure (“Rule”) 12(b)(6), ECF No. 76; twelve of
the Non-Board Defendants 2 move, in nine separate motions, to dismiss the
complaint as to each of them pursuant to both Rules 12(b)(1) and 12(b)(6), ECF Nos.
10, 12, 22, 38, 46, 52, 64, 89, and 127. For the reasons given below, the Court
grants in part and denies in part the Board’s motion and grants each of the NonBoard Defendants’ motions in full.

The Board’s motion was filed on behalf of the Board and Weaver.
Dismiss at 1.
1

Board Mot.

The Court construes the answer filed by Defendant Martay Law (“Martay”),
requesting a dismissal with prejudice, as a motion to dismiss. Martay Answer at 1, ECF
No. 10. To date, Defendant Illinois Department of Human Rights (IDHR) has not answered
or filed an appearance. The initial status report filed on 8/17/17 stated that IDHR had not
yet been served. Initial Status Report at 4, ECF No. 150. Aku then filed an affidavit of
service on the IDHR, dated May 25, 2017. Pl.’s Ex., Aff. Service IDHR, ECF No. 151.
2

2

Factual Background 3
Aku, an African-American man born in 1967, began teaching science at
Gwendolyn Brooks College Preparatory Academy (“Brooks”), a public school in
Chicago, on August 27, 2007. Compl., Ex. Illinois Department of Human Rights
(“IDHR”) and EEOC Charge #15W0707.03 (“Charge 03”) at 1.
Aku experienced a number of challenges during the 2013–14 school year. In
August 2013, Weaver, Brooks’s Principal, informed Aku that Aku would not teach
Physics for 2013–14, as expected, but instead he would teach Biology and
Environmental Science. Pl.’s Resp. Opp’n Parkview Mot. Dismiss, Ex. 4, Bullying
Grievance ¶¶ 2, 6, 7, 9, ECF No. 96 (“Bullying Grievance”). Weaver then provided
Aku with insufficient textbooks for his classes and scheduled Aku to teach during
the science department’s common planning time. Id. ¶ 9. Aku was also evaluated

The following facts are taken from Aku’s complaint and his briefs in opposition to
the motions to dismiss, and are accepted as true on review of the motions to dismiss. See
Tamayo v. Blagojevich, 526 F.3d 1074, 1081 (7th Cir. 2008) (stating that, at the motion-todismiss stage, the court “accept[s] as true all well-pleaded facts alleged”); Smith v. Dart,
803 F.3d 304, 310 (7th Cir. 2015) (“[F]acts alleged by a plaintiff in a brief in opposition to a
motion to dismiss ‘may be considered when evaluating the sufficiency of a complaint so long
as they are consistent of the allegations in the complaint.’” (quoting Gutierrez v. Peters, 111
F.3d 1364, 1367 n.2 (7th Cir. 1997))).
3

The Court does not, however, consider most of the extensive exhibits attached to
Aku’s briefs in opposition to the motions to dismiss. See, e.g., Pl.’s Resp. Opp’n ARDC Mot.
Dismiss, ECF No. 93 (attaching twenty-four separate exhibits, most of which are copies of
email correspondence and print-outs of websites). Rule 12(d) requires the Court to either
strike the exhibits or convert the motion to a summary judgment motion. Fed. R. Civ. P.
12(d). The exhibits are stricken accordingly, with one exception: the Court does consider
Aku’s Bullying Grievance, Pl.’s Resp. Opp’n Parkview Mot. Dismiss, Ex. 4, as an affidavitlike exhibit alleging facts that are “consistent of the allegations in the complaint,” Smith,
803 F.3d at 310, and “supplement the complaint with factual narration.” See Forseth v.
Vill. of Sussex, 199 F.3d 363, 368 (7th Cir. 2000).

3

on a different schedule from the rest of Brooks’s faculty, with a formal evaluation in
fall 2013 and an informal evaluation in the spring; the other teachers had the
reverse schedule, with their informal evaluation first. Id. ¶ 10; see Compl. ¶ 13.
Furthermore, Weaver re-assigned Aku’s tutoring responsibilities for Biology and
Environmental Science, for which Aku had previously received overtime pay, to
other teachers who were not teaching those subject areas.

Bullying Grievance

¶¶ 28–30. On April 4, 2014, Weaver confronted Aku about a decision he had made
to disqualify some Environmental Science students from taking a chapter test. Id.
¶ 27. In that conversation, Weaver told Aku that he should consider leaving the
field of teaching.

Id. ¶ 27; Compl. Ex. IDHR and EEOC Charge #15W0807.07

(“Charge 07”) at 2.
On April 30, 2014, Aku reported to a Chicago Public Schools Employment
Compliance Administrator that the school administration had held a meeting in
November 2013 for only African-American teachers, where Weaver had assured the
teachers that their jobs were not in danger. Compl. ¶ 16, Charge 07 at 4; Pl.’s Resp.
Opp’n Board Mot. Dismiss ¶ 1, ECF No. 136. Aku received a negative teaching
evaluation from Assistant Principal Shannae Jackson the following month. Charge
07 at 3. Weaver notified Aku in late June 2014 that he did not have a position at
Brooks for the 2014–15 school year, Compl. ¶ 12(a), and that he needed math and
science endorsements to teach in Brooks’s new Science, Technology, Engineering &
Math (“STEM”) department. See Bullying Grievance ¶ 41; Pl.’s Resp. Opp’n Board

4

Mot. Dismiss ¶ 5. Aku later learned that a computer endorsement could substitute
for a missing math or science endorsement. Bullying Grievance ¶ 41.
While Weaver told Aku about the new department’s requirements on the
same day that he notified Aku that he did not have a position, Weaver had notified
other teachers of the new requirement earlier, allowing them to timely acquire their
math endorsements.

Bullying Grievance ¶ 41.

According to Aku, Weaver had

notified non-African-American science and math teachers of the change in their
department and job requirements for 2014–15, before notifying the AfricanAmerican teachers. Pl.’s Resp. Opp’n Board Mot. Dismiss ¶ 9. According to Aku,
Weaver

then

terminated

African-American

teachers

who

lacked

those

endorsements, only to later staff the department with underqualified white
teachers. See id. ¶¶ 17, 18.
Around this time, in June 2014, Aku filed his first claim for workers’
compensation, related to an ankle injury incurred at Brooks in October 2013.
Compl. ¶ 13; Pl.’s Resp. Opp’n Board Mot. Dismiss ¶ 2; Pl.’s Resp. Opp’n Parkview
Mot. Dismiss at 4. The ankle injury caused a medial talar dome lesion, which is in
effect “a slow-forming, increasingly painful scar inside his ankle.” Pl.’s Resp. Opp’n
Parkview Mot. Dismiss at 7.
After he was dismissed from Brooks, Aku also began filing IDHR complaints.
He filed his first IDHR complaint on July 7, 2014, claiming that he was terminated
from Brooks on June 26, 2014, due to age discrimination. Charge 03 at 1. Two
months later, on August 7, 2014, Aku filed a second IDHR complaint, alleging

5

harassment and unequal treatment, based on age and race, from August 2013 to
May 2014, Charge 07 at 1–3, and retaliation and discrimination from May 2014 to
August 2014, due to race and the filing of an earlier discrimination charge, id. at 3–
4.
On or about August 25, 2014, the Board began rehiring teachers who had
been laid off from Brooks’s math and science department in June 2014. Compl. Ex.,
IDHR and EEOC Charge #15W0909.15 (“Charge 15”) at 2. The Board recalled
similarly situated non-black employees and employees who were younger than 40,
but it did not recall Aku. Id. at 1–2. Specifically, no African-American science
teachers were recalled to, or hired by, the department. Bullying Grievance ¶ 42; see
also Compl. ¶ 13.
On September 10, 2014, Aku filed a third IDHR complaint, claiming that he
was not recalled back to Brooks due to his age, race, and national origin. Charge 15
at 1–3. Aku then worked as a substitute teacher in September 2014. Compl. Ex.,
IDHR and EEOC Charge #15W1027.16 (“Charge 16”) at 2. As of October 29, 2014,
he had not received pay for that work. Id. Aku proceeded to file a fourth and final
IDHR complaint on October 29, 2014, alleging harassment and unequal pay from
April 30 to October 3, 2014, in retaliation for filing discrimination charges. Id. at 1.
Aku continued to pursue workers’ compensation.

The Board has not yet

responded to the workers’ compensation claim that he filed in June 2014. Compl.
¶ 13. While a later claim for workers’ compensation was granted in the summer of
2016, Aku still has not received all of the related benefits.

6

Id.

Defendants

Sedgwick Claims Management Services (“Sedgwick”) and Cannon Cochran
Management Services (“Cannon”) are respectively past and present third-party
claims administrators for the Board. Pl.’s Resp. Opp’n Cannon Mot. Dismiss at 2,
ECF No. 80; Cannon Mot. Dismiss at 4, ECF No. 23.
Aku hired the firms of Martay Law (“Martay”) and the Law Offices of Bradley
Dworkin, P.C. (“Dworkin”) to pursue his workers’ compensation claims. Both firms
are named as defendants, as is Jack Sanker (“Sanker”), an attorney then working at
Dworkin. Compl. ¶ 16(f)(xiii). Aku was displeased with their performance: Martay
Law for not taking any action for nineteen days after he retained them, Pl.’s Resp.
Opp’n Attorney Review and Disciplinary Committee (ARDC) Mot. Dismiss ¶ 3, ECF
No. 93; and Dworkin and Sanker for not fully resolving his workers’ compensation
and total temporary benefit claims, id. ¶ 4. Aku filed complaints about Sanker and
Martay Law with the Attorney Review and Disciplinary Commission, which he also
sued as a defendant. See id.; see also Compl. ¶ 16(f)(xi).
Defendant Parkview Orthopaedic Group (“Parkview”) treated Aku for his
ankle injury. Pl.’s Resp. Opp’n Parkview Mot. Dismiss at 3. Parkview did not
determine the root cause of Aku’s ankle injury. Id. at 5. Parkview released Aku
back to full duty on November 9, 2015, without testing his capability to meet
minimum job requirements, or noting whether Aku was expected to be permanently
impaired. Id. at 2. Throughout 2015 and 2016, Aku found Parkview unhelpful
when he had difficulty filling his prescriptions and acquiring medical equipment.
Id. at 5.

7

Defendant Chicago Teachers Union (“Union”) filed grievances on Aku’s behalf
related to some of these events. See Compl. ¶ 16(f)(ix); Pl.’s Resp. Opp’n Union Mot.
Dismiss ¶ 2, ECF No. 114. Defendant Brian Clauss (“Clauss”) arbitrated hearings
related to those grievances. Compl. ¶¶ 13, 16(f)(xxvi)–(xxviii). Defendant Robin
Potter and Associates (“Potter Law”) served as the Union’s legal representative
during this time. Id. ¶ 16(f)(xvii); Pl.’s Resp. Opp’n Union Mot. Dismiss ¶ 6.
Aku has named the IDHR and the Illinois Human Rights Commission
(IHRC) as defendants in this action. During the investigation of the IDHR charge,
the IDHR asked Aku to stop submitting evidence and eventually dismissed all four
charges due to lack of substantial evidence. Compl. ¶ 13. The IDHR also required
Aku to describe his race as “black” rather than as African-American. Id.; see also id.
¶¶ 16(f)(i), (ii). Aku then requested that the IHRC review the IDHR’s dismissal of
his four charges; as of the filing of the complaint, the IHRC had not responded.
Compl. ¶ 13.
Aku filed a charge with the EEOC on November 9, 2016, broadly claiming
differential treatment and termination by the Board on the basis of disability, race,
national origin, color, and sex, as well as retaliation for asserting his rights. Compl.
Ex., EEOC Charge, at 1. Aku received a right-to-sue letter from the EEOC on
December 20, 2016. Compl. ¶ 8. Aku initiated this suit on February 15, 2017.
Legal Standard
A motion to dismiss pursuant to Rule 12(b)(1) tests the jurisdictional
sufficiency of the complaint. “When ruling on a motion to dismiss for lack of subject

8

matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1), the district court
must accept as true all well-pleaded factual allegations, and draw reasonable
inferences in favor of the plaintiff.” Ezekiel v. Michel, 66 F.3d 894, 897 (7th Cir.
1995).

But “[t]he district court may properly look beyond the jurisdictional

allegations of the complaint and view whatever evidence has been submitted on the
issue to determine whether in fact subject matter jurisdiction exists.”

Capitol

Leasing Co. v. F.D.I.C., 999 F.2d 188, 191 (7th Cir. 1993) (quoting Grafon Corp. v.
Hausermann, 602 F.2d 781, 783 (7th Cir. 1979)). “[I]f the complaint is formally
sufficient but the contention is that there is in fact no subject matter jurisdiction,
the movant may use affidavits and other material to support the motion.” United
Phosphorus, Ltd. v. Angus Chem. Co., 322 F.3d 942, 946 (7th Cir. 2003), overruled
on other grounds by Minn-Chem, Inc. v. Agrium, Inc., 683 F.3d 845, 848 (7th Cir.
2012).

“The burden of proof on a 12(b)(1) issue is on the party asserting

jurisdiction.” Id.
To survive a motion to dismiss under Rule 12(b)(6), a complaint must “state a
claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007). “A claim has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

Additionally, when considering motions to dismiss, the Court accepts “all wellpleaded factual allegations as true and view[s] them in the light most favorable to
the plaintiff.” Lavalais v. Vill. of Melrose Park, 734 F.3d 629, 632 (7th Cir. 2013)

9

At the same time, “allegations in the form of legal conclusions are insufficient to
survive a Rule 12(b)(6) motion.” McReynolds v. Merrill Lynch & Co., Inc., 694 F.3d
873, 885 (7th Cir. 2012) (citing Iqbal, 556 U.S. at 678). As such, “[t]hreadbare
recitals of the elements of the cause of action, supported by mere conclusory
statements, do not suffice.” Iqbal, 556 U.S. at 678.
The Court is mindful that “a pro se complaint, however inartfully pleaded,
must be held to less stringent standards than formal pleadings drafted by lawyers.”
Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97,
106 (1976)). Nevertheless, while the Court gives liberal construction to a pro se
plaintiff’s complaint, “it is also well established that pro se litigants are not excused
from compliance with procedural rules.” Pearle Vision, Inc. v. Romm, 541 F.3d 751,
758 (7th Cir. 2008).
With these standards in mind, the Court turns to the allegations in Aku’s
Complaint.
Analysis
Aku claims that the Board discriminated against him on the basis of color,
national origin, race, and sex, under Title VII; on the basis of color, national origin,
and race under 42 U.S.C. §§ 1981 and 1983; on the basis of age under the ADEA; on
the basis of disability under the ADA; and retaliated against him for asserting his
rights.

Compl. ¶¶ 9, 12(i).

The Board’s alleged discriminatory actions include

unequal terms and conditions of employment, unjust termination, and failure to
rehire on the basis of age, race, color, and national origin; failure to accommodate a

10

disability; and retaliation in the form of harassment and unequal pay for filing
discrimination charges. See generally Charge 03; Charge 07; Charge 15; Charge 16.
The Board moves to dismiss all ADEA, ADA, Title VII, and § 1981 claims
against Weaver, as well as all official-capacity claims against him; in other words,
it seeks to dismiss all claims against Weaver other than individual-capacity claims
brought under §§ 1981 and 1983. Board Mot. Dismiss at 2, ECF No. 76. The Board
also moves to dismiss all §§ 1981 and 1983 claims against the Board, and all ADEA,
ADA and Title VII claims against it except for those “based on an alleged March 15,
2016 termination.” Id. For the following reasons, the Court grants the Board’s
motion to dismiss the claims against Weaver in full, grants the Board’s motion to
dismiss §§ 1981 and 1983 claims against the Board, and denies the Board’s motion
to dismiss Aku’s ADEA, ADA and Title VII claims against the Board. 4
I.

Claims Against Weaver
Aku does not indicate whether he intended to sue Weaver in his personal or

official capacity. In accordance with the leniency afforded to pro se litigants, see
Talley v. Lane, 13 F.3d 1031, 1033 (7th Cir. 1994), the Court presumes that Aku
intended to sue Weaver in both his capacities.
The Board moves to dismiss all claims against Weaver in his official capacity,
arguing that official-capacity claims against him are duplicative of claims against
the Board. Board Mot. Dismiss at 4. To the extent that Aku does assert official-

Because they are not the subject of the Board’s motion to dismiss, Aku’s §§ 1981 and
1983 claims against Weaver in an individual capacity remain.
4

11

capacity claims against Weaver, the Court grants the Board’s motion to dismiss
those claims as redundant of Aku’s claims against the Board. See Sow v. Fortville
Police Dep’t, 636 F.3d 293, 300 (7th Cir. 2011) (“[A]n official capacity suit is another
way of pleading an action against an entity of which the officer is an agent.” (citing
Kentucky v. Graham, 473 U.S. 159, 165–66 (1985))); see also Smith v. Metro. Sch.
Dist. Perry Twp., 128 F.3d 1014, 1021 n.3 (7th Cir. 1997) (“Because [the plaintiff]’s
suit is also against the entity, i.e., the School District and School Board, her claims
against the principal and assistant principal, in their official capacities, are
redundant.”).
To the extent that Aku brings ADEA, ADA, and Title VII claims against
Weaver himself, the Board moves to dismiss those claims, contending that the
statutes do not provide for individual liability. Board Mot. Dismiss at 4.
Seventh Circuit law is clear that the ADA and Title VII do not provide for
individual liability. See Silk v. City of Chi., 194 F.3d 788, 797 n.5 (7th Cir. 1999)
(“[T]he ADA provides only for employer, not individual, liability.”); Williams v.
Banning, 72 F.3d 552, 555 (7th Cir. 1995) (“[A] supervisor does not, in his individual
capacity, fall within Title VII’s definition of an employer.”). The Seventh Circuit
has repeatedly indicated that the ADEA similarly forecloses individual liability.
See Williams, 72 F.3d at 554–55 (noting that Title VII, the ADA, and the [ADEA]
use virtually the same definition of ‘employer,’ and . . . ‘[c]ourts routinely apply
arguments regarding individual liability to all three statutes interchangeably.’”
(citing EEOC v. AIC Security Investigations, Ltd., 55 F.3d 1276, 1279–80 (7th Cir.

12

1995))); Matthews v. Rollins Hudig Hall Co., 72 F.3d 50, 52 n.2 (7th Cir. 1995)
(stating in dicta that individuals do not independently satisfy the ADEA’s definition
of “employer” and therefore cannot be held liable under the statute); Horwitz v. Bd.
of Educ. of Avoca Sch. Dist. No. 37, 260 F.3d 602, 610 n.2 (7th Cir. 2001) (observing
that the plaintiff had “properly” brought her ADEA claim against only her
employer, and stating that the Seventh Circuit “ha[s] suggested that there is no
individual liability under the ADEA”).
Aku does not respond to the Board’s arguments, other than to note that
Weaver “was an integral part of the scheme to displace Plaintiff; and without
Weaver[’s] harmful actions there would have been no employment severance
whatsoever.” Pl.’s Resp. Opp’n Board Mot. Dismiss at 1. The Court thus grants the
Board’s motion to dismiss all ADEA, ADA, and Title VII claims against Weaver in
his personal capacity.
II.

Claims Against the Board
A.

ADEA, ADA, and Title VII Claims

The Board construes Aku’s ADEA, ADA, and Title VII claims as exclusively
premised on four alleged terminations of employment: “(1) from [Brooks] on June
30, 2014 or August 24, 2014; (2) from a two-day teaching assignment on September
22, 2014; (3) at a September 3, 2015 “job orientation session for reassigned
teachers”; and (4) “from Substitute Services” on March 15, 2016.”
Dismiss at 5 (citing Compl. at 3–4 (¶ 12(a))).

Board Mot.

It then asserts that claims for

terminations (1)–(3) should be dismissed because Aku “fail[s] to comply with

13

administrative prerequisites,” id. at 5; that is, Aku fails to attach an EEOC right-tosue notice for a charge encompassing terminations (1)–(3).
Aku attaches one right-to-sue notice, for EEOC charge 440-2017-00645, filed
November 9, 2016, which broadly describes discrimination due to race, national
origin, color, sex, and disability, as well as discrimination in retaliation for engaging
in protective activity. Compl. Ex., EEOC Charge. The Board argues that, because a
charge of employment discrimination must be filed with the EEOC or relevant state
agency within 300 days of the alleged unlawful employment practice to be timely,
Bass v. Joliet Pub. Sch. Dist. No. 86, 746 F.3d 835, 839 (7th Cir. 2014), and
terminations (1)–(3) occurred more than 300 days before November 9, 2016, Aku is
barred from pursuing ADEA, ADA or Title VII claims related to those actions.
Board Mot. Dismiss at 4–5.
However, “[a] plaintiff’s failure to exhaust administrative remedies”—which
includes the failure to timely file an administrative charge—“is an affirmative
defense.”

Salas v. Wisc. Dep’t of Corr., 493 F.3d 913, 921 (7th Cir. 2007); see

Laouini v. CLM Freight Lines, Inc., 586 F.3d 473, 475 (7th Cir. 2009).

And

“[a]ffirmative defenses cannot form the basis to dismiss unless the plaintiff’s
complaint pleads the plaintiff out of court.” Graham v. United Parcel Serv., 519 F.
Supp. 2d 801, 808 (N.D. Ill. 2007) (citing Tregenza v. Great Am. Commc’ns Co., 12
F.3d 717, 718–19 (7th Cir. 1993)). Aku has not done so here. Accordingly, the
Court declines to dismiss Aku’s claims of discrimination based on terminations (1)–
(3) on this basis.

14

In its motion, the Board narrowly construed Aku’s ADEA, ADA, and Title VII
claims as to relate only to terminations. See Board Mot. Dismiss at 5. The Court
notes, however, that Aku’s claims under those statutes also encompass claims of
discriminatory treatment while he was employed, starting in August 2013, as well
as retaliation in the processing of his claims for workers’ compensation and other
benefits.

See, e.g., Compl. ¶¶ 12(b), (e), (g), (i), (j), (w).

The Board makes no

arguments to dismiss those claims under the ADEA, ADA and Title VII, and they
too will proceed.
B.

Section 1983 Claims

The Board first argues that Aku cannot assert 42 U.S.C. § 1981 claims
against it because § 1981 does not provide a cause of action against local state
actors, government entities, or municipalities.

Board Mot. Dismiss at 7.

It

construes those claims as 42 U.S.C. § 1983 claims. Id. The Board is correct that
“§ 1983 remains the exclusive remedy for violations of § 1981 committed by state
actors.” Campbell v. Forest Pres. Dist. of Cook Cty., Ill., 752 F.3d 665, 671 (7th Cir.
2014). As such, to the extent that Aku makes claims under § 1981 against the
Board, the Court too construes those claims as claims under § 1983.
The Board next argues that Aku fails to state a Monell claim against the
Board, dooming his § 1983 claims. See Monell v. City of New York Dep’t of Social
Servs., 436 U.S. 659 (1978). Under Monell, state actors may not be held liable for
constitutional violations under a respondeat superior theory; rather, a plaintiff with
a § 1983 claim must show that the constitutional deprivation was committed
pursuant to government policy, custom, or practice. Waters v. City of Chi., 580 F.3d
15

575, 580 (7th Cir.2009) (citing Monell, 436 U.S. at 694). To establish liability under
Monell, a plaintiff must demonstrate: “(1) an express policy that causes a
constitutional deprivation when enforced; (2) a widespread practice that is so
permanent and well-settled that it constitutes a custom or practice; or (3) an
allegation that the constitutional injury was caused by a person with final
policymaking authority.” Id. at 581.
The Board contends that Aku has pleaded no factual allegations of a
discriminatory Board policy or practice, and furthermore, that Weaver, as a
principal, does not qualify as a “final policymaker” for whom the Board bears
responsibility under Monell. Board Mot. Dismiss at 8.
The Court agrees. Aku pleads facts that might, at best, plausibly support a
claim of a policy of terminating African-American teachers at Brooks. For example,
he alleges that Brooks held an all-African-American teachers meeting to dispel
concerns that it would dismiss African-American teachers, then dismissed all
African-American science and math teachers. See Compl. ¶¶ 13, 16(f)(xxv); Charge
07 at 3, 4, Pl.’s Resp. Opp’n Board Mot. Dismiss at 1. Aku does not plead any facts,
however, that indicate a Board-wide policy or practice of discriminating against
teachers on the basis of color, national origin, or race. 5 All of Aku’s claims of color,
national origin, and race discrimination relate to his time at Brooks and the actions
of an individual school administration.

Aku’s § 1981 claims, and hence his § 1983 claims, exclusively refer to color, national
origin, and race discrimination. See Compl. ¶ 9. He did not plead § 1983 claims based on
age and disability discrimination.
5

16

Furthermore, the Court finds that Weaver does not qualify as a “final
policymaker” for the Board. “Whether a particular official has final policymaking
authority is a question of state law.” Wragg v. Vill. of Thornton, 604 F.3d 464, 468
(7th Cir. 2010). Under Illinois law, “[t]he right to employ, discharge, and layoff [is]
vested solely with the board, provided that decisions to discharge or suspend noncertified employees, including disciplinary layoffs, and the termination of certified
employees from employment pursuant to a layoff or reassignment policy are subject
to review under the grievance resolution procedure.” 105 Ill. Comp. Stat. 5/34-8.1
(describing the role of school principals in cities of over 500,000 inhabitants).
Indeed, Aku submitted grievances through his Union to the Board, related to his
treatment at, and termination from, Brooks, Pl.’s Resp. Opp’n Union Mot. Dismiss
¶ 2, thus underscoring that Weaver’s decisions were subject to Board review. Even
if Aku were to allege that Weaver had authority to hire and fire, “[t]here must be a
delegation of authority to set policy for hiring and firing,” for an official to qualify as
a final policymaker [for the Board], “not a delegation of only the final authority to
hire and fire.” Darchak v. City of Chi. Bd. of Educ., 580 F.3d 622, 630 (7th Cir.
2009) (quoting Kujawski v. Bd. of Comm’rs of Bartholomew Cty., Ind., 183 F.3d 734,
739 (7th Cir. 1999)); see also Yeksigian v. Nappi, 900 F.2d 101, 105 (7th Cir. 1990).
Because Aku did not plead any facts indicating that there was a
discriminatory Board policy or custom, or that Weaver qualified as a “final
policymaker” under Monell, the Court grants the Board’s motion to dismiss any
§ 1983 claims against the Board.

17

III.

Claims Against the Non-Board Defendants
Aku alleges that the Non-Board Defendants 6 aided and abetted the Board in

retaliating against him by failing to reasonably accommodate his disability in
violation of the ADA. Compl. ¶ 12(j)(xi) (referencing id. ¶ 12(g)). He further claims
that the Non-Board Defendants aided and abetted the Board in a conspiracy to
discriminate against Aku in violation of Title VII. Compl. ¶¶ 13; 13(h). Aku does
not appear to assert any ADEA, § 1981, or § 1983 claims against any of the NonBoard Defendants.
A. Subject Matter Jurisdiction as to Claims Against the ARDC
The ARDC seeks to dismiss the complaint under Rule 12(b)(1), asserting that
the Court does not have subject matter jurisdiction because Aku lacks standing,
ARDC Mem. Supp. Mot. Dismiss ¶ 7, ECF No. 47, and that the claims against it are
barred by the Eleventh Amendment. Id. ¶¶ 13–17.
Standing

requires

that

“the

party

invoking

federal

jurisdiction

[]

demonstrate ‘a personal injury fairly traceable to the defendant’s allegedly unlawful
conduct and likely to be redressed by the requested relief.’” G& S Holdings LLC v.
Cont’l Cas. Co., 697 F.3d 534, 540 (7th Cir. 2012) (quoting Allen v. Wright, 468 U.S.
737, 738 (1984), abrogated on other grounds by Lexmark Int’l, Inc. v. Static Control
Components, Inc., 134 S. Ct. 1377, 1387–88 (2014)). The ARDC contends that Aku

The Non-Board Defendants are: the ARDC, Brian E. Clauss, Cannon Cochran
Management Services, Chicago Teachers Union, Law Offices of Bradley Dworkin, P.C.,
Illinois Department of Human Rights, Illinois Human Rights Commission, Jack Sanker,
Martay Law Office, Parkview Orthopaedic Group, Robin Potter, Robin Potter & Associates,
P.C., and Sedgwick Claims Management Services.
6

18

cannot demonstrate a personal injury traceable to its conduct, because he has only
asserted that the ARDC has not pursued disciplinary action against certain
attorneys. ARDC Mem. Supp. Mot. Dismiss ¶ 8.
Indeed, Aku’s only direct reference in his complaint to the ARDC is a request
that the agency “reopen investigations of David Martay and Jack Sanker.” Compl.
¶ 16(f)(xi). But “a citizen lacks standing to contest the policies of the prosecuting
authority when he himself is neither prosecuted nor threatened with prosecution.”
Wikberg v. Reich, 21 F.3d 188, 190 (7th Cir. 1994) (quoting Linda R.S. v. Richard
D., 410 U.S. 614, 619 (1973)).

And “neither intellectual curiosity nor purely

psychological harm suffices to establish [standing].” United States v. All Funds on
Deposit with R.J. O’Brien & Assocs., 783 F.3d 607, 616 (7th Cir. 2015), cert. denied
sub nom. One Beacon Ins. Co. v. United States, 136 S. Ct. 1374 (2016). Aku simply
cannot demonstrate that the ARDC’s failure to prosecute the attorneys harmed him.
Aku’s only response to this argument is to provide a description of the ways
Martay and Sanker have wronged him, Pl.’s Resp. Opp’n ARDC Mot. Dismiss at 2,
and to assert that the agency’s “oversight” with respect to Aku’s requests for
investigation of the two attorneys “deserves federal attention,” id. at 1–2. Because
these arguments do not establish personal injury fairly traceable to the ARDC, the
Court concludes that Aku is unable to demonstrate standing regarding his claim
against the ARDC.
The ARDC also contends that, as the “the investigative and prosecutorial arm
of the Illinois Supreme Court,” Aku’s claims against it are barred by sovereign

19

immunity. ARDC Mem. Supp. Mot. Dismiss ¶ 15; see also Ill. S. Ct. Rules 751,
752(a). The Eleventh Amendment bars suits against states in federal court, unless
Congress has overridden the state’s immunity or the state has waived it. Ryan v.
Ill. Dep’t of Children & Family Servs., 185 F.3d 751, 758 (7th Cir. 1999). As a
branch of the state government, the Illinois Supreme Court is protected from
federal suit under the Eleventh Amendment; accordingly, so is the ARDC.

See

Landers Seed Co. v. Champaign Nat’l Bank, 15 F.3d 729, 731–32 (7th Cir. 1994);
Crenshaw v. Supreme Court, 170 F.3d 725, 729 (7th Cir. 1999). Moreover, while
Congress “validly abrogated the States’ Eleventh Amendment immunity with
respect to Title VII disparate treatment claims,” Nanda v. Bd. of Trs. of the Univ. of
Ill., 303 F.3d 817, 831 (7th Cir. 2002), only persons or entities that qualify as a
plaintiff’s “employers” are liable to suit under Title VII, see infra; Knight v. United
Farm Bureau Mut. Ins. Co., 950 F.2d 377, 380 (7th Cir. 1991). As a result, Aku’s
claims against the ARDC are barred by sovereign immunity.
Because Aku cannot demonstrate an injury traceable to the ARDC for any of
his claims, and because his claims are further barred by sovereign immunity, the
Court grants the ARDC’s motion to dismiss Aku’s claims against it for lack of
subject matter jurisdiction under 12(b)(1).
B. Arbitral Immunity
Clauss served as an arbitrator for grievances filed by the Union on behalf of
Aku. See Compl. ¶¶ 13, 16(xxvi)–(xxix). All of Aku’s allegations regarding Clauss
concern Clauss’s actions while serving as arbitrator on October 13, 2016, and
January 31, 2017. Id. Aku alleges that, during the arbitration hearings, Clauss
20

insulted Aku by saying that Aku had “read the book about courtroom proceedings.”
Id. ¶ 16(f)(xxvii). Clauss moves to dismiss all claims against him under Rule
12(b)(6), arguing that arbitrators enjoy absolute immunity for all acts performed in
the capacity as arbitrator.
Arbitrators are shielded from liability by absolute immunity. See Coleman v.
Dunlap, 695 F.3d 650, 652 (7th Cir. 2012) (“Parties who, although not judges,
engage in adjudication (such as private arbitrators or administrative tribunals) . . .
enjoy absolute immunity.”); Tamari v. Conrad, 552 F.2d 778, 781 (7th Cir. 1977)
(comparing suing an arbitrator to suing jurors when a litigant is dissatisfied with
the outcome of a lawsuit); Int’l Med. Group, Inc. v. Am. Arbitration Ass’n, 312 F.3d
833, 843 (7th Cir. 2002) (collecting cases on “arbitral immunity”). “Absolute
immunity extends to all acts taken by arbitrators within the scope of their
adjudicative duties, even those alleged to be malicious, irregular, or erroneous.”
Johnson v. Thompson-Smith, 203 F. Supp. 3d 895, 902 (N.D. Ill. 2016) (citing
Forrester v. White, 484 U.S. 219, 227 (1988) and Dellenbach v. Letsinger, 889 F.2d
755, 759 (7th Cir. 1989)). As Aku’s allegations regarding Clauss exclusively concern
Clauss’s acts in the scope of his arbitral duties, all claims against Clauss are barred
by arbitral immunity.
C.

Conspiracy/Aiding and Abetting Under the ADA and Title VII

The Non-Board Defendants contend that Aku’s claims that they conspired
with, and aided and abetted, the Board in discriminating against him, in violation
of Title VII, and retaliating against him, in violation of the ADA, cannot be
maintained because the relevant statutes provide no relief against non-employers.
21

See, e.g., Parkview Reply Br. at 8, ECF No. 118; Cannon Cochran, Mem. Supp. Mot.
Dismiss at 3–4. They therefore seek to dismiss those claims under Rule 12(b)(6) for
failure to state a claim upon which relief can be granted.
A plaintiff “must prove the existence of an employment relationship in order
to maintain a Title VII action” against a defendant. Knight, 950 F.2d at 380. While
the defendant need not be the plaintiff’s “direct employer,” Love v. JP Cullen &
Sons, Inc., 779 F.3d 697, 701 (7th Cir. 2015) (citing EEOC v. Ill., 69 F.3d 167, 169
(7th Cir. 1995)), there must be either be a de facto (or indirect) employment
relationship, or the defendant must be an “agent” of the plaintiff’s employer. Id.; see
also 42 U.S.C. § 2000e(b) (“The term ‘employer’ means a person engaged in an
industry affecting commerce who has fifteen or more employees for each working
day . . . and any agent of such a person.”).

The ADA also “provides only for

employer, not individual, liability,” Silk, 194 F.3d at 797 n.5, and has similar
requirements: it bars “employer[s], employment agenc[ies], labor organization[s], or
joint labor-management committee[s]” from discriminating against employees on
the basis of their disability, 42 U.S.C. §§ 12111, 12112(a), and includes “agents” in
its definition of “employers.” § 12111(5)(A).
Aku neither alleges nor pleads any facts indicating that he had an actual or
de facto employee-employer relationship with any of the Non-Board Defendants.
See Love, 779 F.3d at 702 (citing Knight, 950 F.2d at 378–79). And it is irrelevant
whether any of the Non-Board Defendants could be seen as “agents” of the Board
because Title VII and ADA violations by an agent are imputable only to the

22

employer, and not to the agent itself. The Seventh Circuit has interpreted the “and
any agent” language in the definition of “employer” in the ADA and similar statutes
as “ensur[ing] that courts would impose respondeat superior liability upon
employers for the acts of their agents.” Id. at 1281 (emphasis added). See also Chi.
Reg’l Council of Carpenters v. Pepper Constr. Co., 32 F. Supp. 3d 918, 923 (N.D. Ill.
2014) (concluding that liability under the ADA rests with the employer, not with a
purported “agent” hired to conduct employment testing). As such, agents are not
liable; the employer is. 7 Accordingly, Aku fails to state a claim against any of the
Non-Board Defendants 8 under Title VII or the ADA.
Therefore, to the extent that Aku asserts a claim that the Non-Board
Defendants conspired with or aided and abetted the Board in discriminating and
retaliating against him in violation of Title VII and the ADA, he fails to state a
claim to relief against the Non-Board Defendants, and the claims are dismissed
with prejudice.

To the extent that Aku was attempting to plead common-law aiding and abetting
and conspiracy claims, as two of the Non-Board Defendants posited, see, e.g., Parkview
Mem. Supp. Mot. Dismiss at 12–14; ARDC Mem. Supp. Mot. Dismiss ¶¶ 23, 24, such claims
would fail for the same reasons. Beyond the fact that Aku failed to plead the elements of
Illinois conspiracy and aiding and abetting, such claims are not permitted under Title VII
and the ADA because so permitting would expand the scope of liability beyond a plaintiff’s
employer. See Love, 779 F.3d at 701 (holding that Title VII liability is limited to a
plaintiff’s employer); Silk, 194 F.3d at 797 n.5 (“[T]he ADA provides only for employer, not
individual, liability.”).
7

8

See note 7, supra (listing Non-Board Defendants).

23

D.

Independent Claims Against Non-Board Defendants

Aku provides a list of actions committed by “defendant(s),” Compl. ¶ 12, most
of which appear to describe ways in which the Board, acting independently, violated
the ADA, ADEA, Title VII, § 1981, and § 1983. See, e.g., id. ¶ 12(a)–(h), (k)–(m).
The impression that these items refer solely to the Board is reinforced by Aku’s
listing of eleven of the Non-Board Defendants as “aiding and abetting” the
“defendant(s)” in retaliation against Aku. Id. ¶ 12(j). However, some of the later
items on the list could be interpreted as applying solely to Non-Board Defendants.
See id. ¶¶ 12(o), (p), (q), (t), (u), (w), (x), and (y). For example, the clause, “failed to
address attorney misconduct,” might only be leveled at the ARDC, see id. ¶ 12(o);
the clause, “participated in medical malpractice and/or insurance fraud schemes”
might only relate to Parkview, see id. ¶ 12(q); and the clause “refused to investigate
complaints of aiding & abetting,” might only be directed toward the IDHR and
IHRC, see id. ¶ 12(u).
If, indeed, some of the items on the list were intended to be independent
claims against unnamed individual Non-Board Defendants, Aku would have needed
to connect the claims with individual Defendants in order for the parties to be on
notice and for the Court to evaluate the legal sufficiency of the claims. See Agnew v.
Nat'l Collegiate Athletic Ass’n, 683 F.3d 328, 334 (7th Cir. 2012) (“[A] complaint
may be ‘so sketchy that the complaint does not provide the type of notice of the
claim to which the defendant is entitled’ . . . in which case a dismissal of the
complaint is proper.” (quoting Airborne Beepers & Video, Inc. v. AT & T Mobility

24

LLC, 499 F.3d 663, 667 (7th Cir. 2007))). Moreover, Aku’s replies indicate that he
did not intend those allegations to serve as claims.

See, e.g., Pl.’s Resp. Opp’n

Parkview Mot. Dismiss at 8 (accepting the “request” from Parkview that he “submit
a complaint of medical malpractice”).

The Court, therefore, does not construe

Compl. ¶¶ (o), (p), (q), (t), (u), (w), (x), or (y) as legal claims, against the Non-Board
Defendants or otherwise.

To the extent that Aku intended them to stand as

independent legal claims, they are dismissed for failure to state a claim under Rule
12(b)(6).
Conclusion
For the reasons stated herein, the Board’s partial motion to dismiss [76] is
granted in part and denied in part. The Court grants the Board’s motion to dismiss
all claims against Weaver (other than personal-capacity claims brought under
§§ 1981 and 1983 for discrimination on the basis of color, national origin, and race)
and all § 1983 claims against the Board; in all other respects, the Board’s motion to
dismiss is denied. The following causes of action against the Board remain: Title
VII color, national origin, race, and sex discrimination claims; ADEA age
discrimination claims; ADA disability discrimination claims; and Title VII, ADEA,
and ADA retaliation claims.
The Non-Board Defendants’ motions to dismiss, [10], [12], [22], [38], [46],
[52], [64], [89], [127], are granted in full, and Aku’s claims that the Non-Board
Defendants aided, abetted, and conspired with the Board to discriminate and
retaliate against him, in violation of Title VII and the ADA, are dismissed with

25

prejudice. Claims against Clauss and the ARDC are dismissed, respectively, by
arbitral immunity and lack of subject matter jurisdiction. There are no remaining
claims asserted against the Non-Board Defendants. Accordingly, the following NonBoard Defendants are terminated: the Attorney Registration & Disciplinary
Commission, Brian E. Clauss, Cannon Cochran Management Services, Chicago
Teachers Union, Law Offices of Bradley Dworkin, P.C., Illinois Human Rights
Commission, Jack Sanker, Martay Law Office, Parkview Orthopaedic Group, Robin
Potter, Robin Potter & Associates, P.C., and Sedgwick Claims Management
Services.

To date, Non-Board Defendant Illinois Department of Human Rights

(IDHR) has not answered or filed an appearance, although Aku filed an affidavit of
service on the IDHR, dated May 25, 2017. Pl.’s Ex., Aff. Service IDHR, ECF No.
151. As a result, three Defendants remain: Weaver, the Board, and the IDHR.
If Aku wishes to file an amended complaint consistent with this order, he
must do so by 12/5/17. The parties are encouraged to prepare to discuss discovery
at the status hearing previously set for November 16, 2017.

IT IS SO ORDERED.

ENTERED

11/14/17

__________________________________
John Z. Lee
United States District Judge

26