Varela v. Board of Control Lake County High School Technology Campus, Lake County
Filing
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MEMORANDUM Opinion and Order: The Court grants in part and denies in part defendants' motion to dismiss 10 . (See order for further detail) Status hearing set for 6/15/2018 at 09:00 AM. Signed by the Honorable Thomas M. Durkin on 6/5/2018:Mailed notice(srn, )
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
HEIDI VARELA,
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Plaintiff,
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v.
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BOARD OF CONTROL, LAKE COUNTY
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HIGH SCHOOL TECHNOLOGY CAMPUS, et al., )
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Defendants.
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No. 17 C 5832
Judge Thomas M. Durkin
MEMORANDUM OPINION & ORDER
Plaintiff Heidi Varela has sued defendants Board of Control of Lake County
High School Technology Campus (“the Board”), and Constance Collins, Jim McKay,
and Roycealee Wood in their official capacities as officers of the Board, for
employment discrimination and retaliation. Currently before the Court is
defendants’ partial motion to dismiss Varela’s complaint. R. 10. For the reasons
explained below, the Court grants in part and denies in part defendants’ motion.
STANDARD
The complaint must provide “a short plain statement of the claim showing
that the pleader is entitled to relief.” Fed. Civ. P. 8(a)(2). Through this statement,
defendants must be provided with “fair notice” of the claim and the basis for it. Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). This means the complaint must
“contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly,
550 U.S. at 570). “‘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.’” Mann, 707 F.3d at 877 (quoting Iqbal, 556 U.S.
at 678). In applying this standard, the Court accepts all well-pleaded facts as true
and draws all reasonable inferences in favor of the non-moving party. Mann, 707
F.3d at 877.
BACKGROUND
Lake County High School Technology Campus hired Varela as an instructor
in August 2013. R. 1 ¶ 12. Derrick Burress was the principal of the school and
Varela’s immediate supervisor. Id. ¶¶ 14-15.
From August 2013 through December 2015, Burress did not formally observe
Varela in her classroom, Varela was never told that she was performing her job
unsatisfactorily, and Varela was not disciplined or reprimanded. Id. ¶¶ 18-20. In
September 2013, Varela’s teacher evaluation ranked her with two excellent marks,
23 proficient marks, seven needs improvement marks, and no unsatisfactory marks.
Id. ¶ 16. Varela’s January 2014 teacher evaluation ranked her with nine excellent
marks, 36 proficient marks, two needs improvement marks, and no unsatisfactory
marks. Id. ¶ 17.
On September 9, 2015, Varela told Burress that she was pregnant. Id. ¶ 21.
Burress asked Varela about her plans after the baby was born, and Varela
responded with her due date. Id. ¶¶ 22-23. Burress then “asked in a negative,
condescending tone ‘so you don’t have a plan?’” Id. ¶ 24. A few weeks later, on
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September 29, 2015, Varela requested from assistant principal Sebastian Kapala
and executive director Steve Clark an aide to assist in heavy lifting and cleaning a
printer with chemicals in light of her pregnancy. Id. ¶ 28. On December 8, 2015,
Varela communicated again with Kapala and Clark regarding her pregnancy and
lack of assistance with heavy lifting and cleaning the printer. Id. ¶ 32.
Burress conducted his first formal observation of Varela’s classroom on
December 8, 2015. Id. ¶ 29. Varela’s December 8, 2015 teacher evaluation gave her
six excellent marks, 30 proficient marks, four needs improvement marks, and no
unsatisfactory marks. Id. ¶ 30.
In 2016, Burress permanently removed Varela’s classroom aide from her
classroom. Id. ¶¶ 26-27. On February 19, 2016, Burress conducted a second formal
observation of Varela’s classroom. Id. ¶ 33. Varela’s February 19, 2016 teacher
evaluation rated her overall performance as needs improvement, and gave her five
excellent marks, 27 proficient marks, eight needs improvement marks, and no
unsatisfactory marks. Id. ¶ 34. After meeting with Burress to receive her February
19, 2016 evaluation, Varela became visibly upset and left his office in tears. Id.
¶ 35.
In early March 2016, Varela submitted rebuttals to Burress’ evaluation
reports from his December 2015 and February 2016 formal observations. Id. ¶¶ 31,
36. On March 17, 2016, defendants notified Varela that she would not be reemployed as a full-time instructor and that her employment would end on June 3,
2016. Id. ¶ 37.
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Varela filed a charge of discrimination with the Equal Employment
Opportunity Commission (“EEOC”) against Lake County High School Technology
Campus on March 30, 2016, which the EEOC received on April 4, 2016. R. 10-2. In
her EEOC charge, Varela checked the boxes for sex and disability discrimination,
but not for retaliation. See id. And the narrative section of the EEOC charge alleges
that Varela was “discriminated against because of [her] sex female and due to
pregnancy . . . [and] because of [her] disability,” but does not mention retaliation.
See id.
Varela requested leave pursuant to the Family Medical Leave Act (“FMLA”)
for the birth of her child from May 6, 2016 through May 26, 2016, and that request
was approved. R. 1 ¶¶ 38-40. After her leave, Varela was never rehired. Id. ¶ 42.
On May 10, 2017, the EEOC issued Varela a notice of right to sue, which
Varela received on May 13, 2017. Id. ¶ 9. Varela filed her complaint in this case on
August 10, 2017, within 90 days of Varela’s receipt of the right to sue notice. Id.
¶ 10.
Count I of Varela’s complaint alleges sex and pregnancy discrimination in
violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C.
§ 2000e2(a)(1), and the Pregnancy Discrimination Act of 1978, 775 Ill. Comp. Stat.
Ann. 5/2-102. Id. ¶¶ 47-48. Specifically, Varela contests defendants’ failure to rehire
her after she informed Burress that she was pregnant and would be taking FMLA
leave. Id. ¶¶ 49-50. Count II alleges retaliation in violation of Title VII. Varela
contends that defendants did not rehire her in retaliation for complaining about
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Burress’s discriminatory treatment. Id. ¶ 54. Varela requests numerous forms of
relief, including back pay, front pay, compensatory and consequential damages, and
punitive damages. Id. at p. 8. Varela sues Collins, McKay, and Wood only in their
official capacities as officers of the Board, and does not make any specific
allegations against them in her complaint. See id.
ANALYSIS
I.
Count II – Retaliation
Defendants move to dismiss Count II because Varela did not allege
retaliation in her EEOC charge. As a general matter, an “aggrieved employee may
not complain to the EEOC of only certain instances of discrimination, and then seek
judicial relief for different instances of discrimination.” Connor v. Ill. Dep’t of
Natural Res., 413 F.3d 675, 680 (7th Cir. 2005). “A Title VII plaintiff” thus “may
bring only those claims that were included in his EEOC charge or that are like or
reasonably related to the allegations of the charge and growing out of such
allegations.” Swearnigen-El v. Cook Cty. Sheriff’s Dep’t, 602 F.3d 852, 864 (7th Cir.
2010). In Swearnigen-El, the Seventh Circuit affirmed the dismissal of a retaliation
claim where the plaintiff had not “check[ed] the box for retaliation” in his EEOC
charge or “otherwise indicate[d] that action had been taken against him for reasons
other than race or gender.” Id. at 864. The Swearnigen-El court explained that
“normally, retaliation and discrimination charges are not considered ‘like or
reasonably related’ to one another.” Id.; accord Zegarra v. John Crane, Inc., 218 F.
Supp. 3d 655, 663 (N.D. Ill. 2016) (“Courts review the scope of an EEOC charge
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liberally, but settled precedent holds that allegations of discrimination in an EEOC
charge are not like or reasonably related to allegations of retaliation, and therefore
are not sufficient to support a retaliation claim.”).
In this case, it is undisputed that Varela checked the boxes only for sex and
disability discrimination in her EEOC charge, and that she did not mention
retaliation anywhere in the narrative portion of her EEOC charge. See R. 10-2.
Varela nevertheless claims that her retaliation claim is preserved, citing Clockedile
v. New Hampshire Dep’t of Corr., 245 F.3d 1, 6 (1st Cir. 2001), and Gupta v. E.
Texas State Univ., 654 F.2d 411, 414 (5th Cir. 1981). These cases set forth a “limited
exception to the exhaustion requirement for retaliation claims”: “that ‘a separate
administrative charge is not a prerequisite to a suit complaining about retaliation
for filing the first [EEOC] charge.’” Zegarra, 218 F. Supp. 3d at 663 (quoting
Malhotra v. Cotter & Co., 885 F.2d 1305, 1312 (7th Cir. 1989), and collecting cases);
accord Clockedile, 245 F.3d at 6 (“retaliation claims are preserved so long as the
retaliation is reasonably related to and grows out of the discrimination complained
of to the agency—e.g., the retaliation is for filing the agency complaint itself”);
Gupta, 654 F.2d at 414 (“it is unnecessary for a plaintiff to exhaust administrative
remedies prior to urging a retaliation claim growing out of an earlier charge”). The
Seventh Circuit has made clear that this “exception does not apply to claims based
on alleged retaliatory acts committed before the plaintiff’s filing of an EEOC charge,
since such retaliation could be alleged in the initial charge and therefore would not
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require a ‘needless’ second charge.” Zegarra, 218 F. Supp. 3d at 664 (quoting
McKenzie v. Illinois Dep’t of Transp., 92 F.3d 473, 4823 (7th Cir. 1996)).
The limited exception for retaliation claims growing out of an earlier EEOC
charge does not apply to Varela’s retaliation claim for two clear reasons. First,
Varela’s retaliation claim does not allege that defendants retaliated against her for
filing the EEOC charge itself—instead, it alleges that defendants retaliated against
her for making complaints to Burress. See R. 1 ¶ 54 (alleging that “Defendants
actions in failing to re-hire [Varela] were in retaliation for complaining of the
discriminatory treatment by Principal Burress”).
Second, Varela did not file her EEOC charge until after the alleged
retaliation took place. Varela signed her EEOC charge on March 30, 2016, and the
EEOC received it on April 4, 2016. R. 10-2. But the retaliatory act alleged by
Varela—defendants’ notification that she would not be rehired—occurred on March
17, 2016. R. 1 ¶ 37. “Because th[is] incident[ ] of retaliation could have been—and
should have been—included in [Varela’s] administrative charges, [it] cannot now
serve as the basis of the retaliation claim alleged in her complaint.” McKenzie, 92
F.3d at 483. As such, “the exception to the ordinary exhaustion rule” (Zegarra, 218
F. Supp. 3d at 664) invoked by Varela does not apply, and the Court grants
defendants’ motion to dismiss Count II.
II.
Count I – Sex Discrimination
Defendants also move to dismiss Count I in part. Defendants acknowledge
that Varela’s “sex and pregnancy discrimination” “claims are properly pled because
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they were part of [Varela’s] EEOC charge.” R. 10 at 5. But defendants say that
Count I also “attempt[s] to raise a FMLA claim,” which was not part of Varela’s
EEOC charge. Id. Defendants acknowledge in their reply that Varela was not
required to include an FMLA claim in her EEOC charge to preserve it, but
“continue to argue that plaintiff cannot be allowed to continue her FMLA claim
because in describing the statutes that the defendants allegedly violated, the
plaintiff does not identify the FMLA statute.” R. 21 at 7 (citing R. 1 ¶ 1).
The Court rejects defendants’ argument for several reasons. First, it is
unclear whether Varela is in fact attempting to raise an FMLA theory. Count I
purports to be a claim for sex and pregnancy discrimination, and cites statutes
prohibiting those forms of discrimination. Count I merely mentions the FMLA in
one paragraph, which states that “[t]he non-rehiring was in retaliation for the
FMLA leave requested by [Varela] due to her pregnancy.” R. 1 ¶ 50.
Second, “[i]t is factual allegations, not legal theories, that must be pleaded in
a complaint.” Whitaker v. Milwaukee Cty., Wisconsin, 772 F.3d 802, 808 (7th Cir.
2014). There was therefore no need for Varela to specifically “identify the FMLA
statute” in her complaint as defendants claim. R. 21 at 7.
Third, any FMLA theory would only be part of Count I. And the Court does
not have power to dismiss parts of claims on a Rule 12(b)(6) motion to dismiss. BBL,
Inc. v. City of Angola, 809 F.3d 317, 325 (7th Cir. 2015) (“A motion to dismiss under
Rule 12(b)(6) doesn’t permit piecemeal dismissals of parts of claims; the question at
this stage is simply whether the complaint includes factual allegations that state a
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plausible claim for relief.”). The Court therefore denies defendants’ request to
dismiss Count I in part.
III.
Official Capacity Defendants
Finally, the individual Board member defendants named in their official
capacities maintain that they should be dismissed as redundant defendants. A “suit
against an official in her official capacity is actually a suit against the government
entity.” Levin v. Madigan, 697 F. Supp. 2d 958, 973 (N.D. Ill. 2010). For that reason,
as numerous courts in this district have recognized, “where the plaintiff names the
government entity as a defendant in the suit, the claim against the individual in
her official capacity is redundant.” Id. at 973-74 (collecting cases); Williams v. Cty.
of Cook, 969 F. Supp. 2d 1068, 1074 (N.D. Ill. 2013) (same, and collecting cases);
Ojeda v. Sanchez, 2017 WL 4772809, at *2–3 (N.D. Ill. Oct. 23, 2017) (same); Offor
v. Illinois Dep’t of Human Servs., 2013 WL 170000, at *2 (N.D. Ill. Jan. 16, 2013)
(same).
Here, the individual Board member defendants named in their official
capacities are redundant of the Board itself. Indeed, Varela makes no specific
allegations against any of the individual Board member defendants in her
complaint. See R. 1. Varela’s claims against the individual Board member
defendants are therefore dismissed.
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CONCLUSION
For the foregoing reasons, the Court grants in part and denies in part
defendants’ motion to dismiss (R. 10).
ENTERED:
Honorable Thomas M. Durkin
United States District Judge
Dated: June 5, 2018
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