Khan v. Board Of Education Of The City Of Chicago
Filing
57
MEMORANDUM Opinion and Order. Signed by the Honorable Manish S. Shah on 11/28/2018: The Board's motion 29 is granted in part, denied in part. Counts one, two, six, and nine are dismissed, as is the malicious prosecution claim. If Khan wants to amend the complaint, she must file a motion asking for permission and attach her proposed amended complaint as an exhibit. If the proposal is as unwieldy as the current complaint, the motion will be summarily denied. [For further detail see attached order.] Notices mailed. (psm, )
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
SHAHEENA KHAN,
Plaintiff,
No. 17 CV 9300
v.
BOARD OF EDUCATION OF THE CITY OF
CHICAGO,
Judge Manish S. Shah
Defendant.
MEMORANDUM OPINION AND ORDER
Shaheena Khan, a former elementary school principal, alleges that the Board
of Education wrongfully terminated her in August of 2017. Her first amended
complaint is divided into eleven counts but cites many more causes of action. The
Board moves to dismiss the complaint as unintelligible under Federal Rule of Civil
Procedure 8 and, alternatively, moves to dismiss counts one, two, four, six, nine, ten
and eleven under Federal Rule of Civil Procedure 12(b)(6).
I.
Legal Standards
A complaint must contain a short and plain statement of factual allegations
that plausibly suggest a right to relief. Ashcroft v. Iqbal, 556 U.S. 662, 677–78 (2009);
Fed. R. Civ. P. 8(a)(2). In ruling on a motion to dismiss, a court must accept all factual
allegations as true and draw all reasonable inferences in the plaintiff's favor, but the
court need not accept legal conclusions or conclusory allegations. Id. at 680–82. A
complaint must “contain either direct or inferential allegations respecting all the
material elements necessary to sustain recovery under some viable legal theory.” Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 562 (2007).
II.
Facts
The Board of Education of the City of Chicago manages the city’s public
schools. [27] ¶ 7.1 Defendant Karen Saffold was an employee of the Board and
Plaintiff Shaheena Khan’s supervisor. Id. at ¶¶ 10, 44.
Khan was once the principal of Aldridge Elementary. See id. ¶ 28. In June of
2013, she entered into an employment agreement with the local school counsel for
Aldridge Elementary that covered the period spanning July 1, 2013, to June 30, 2017.
Id. She was awarded another (on or about July 21, 2016) covering the period spanning
July 1, 2017, to June 30, 2021. Id. ¶ 99. Khan alleges that she was fired on August
24, 2016. Id. ¶¶ 150–52.2
III.
Analysis
A.
Rule 8
Khan’s complaint is divided into eleven counts, but that number is misleading.
Five of those counts (counts two, four, nine, ten and eleven) describe two or more legal
theories in their titles alone. See [27] at 27, 33, 45, 49 and 54. Additional theories are
embedded in others. See, e.g., [27] ¶ 305 (claim for First Amendment retaliation
Bracketed numbers refer to entries on the district court docket. Unless otherwise specified,
citations are to the page numbers as they are reflected in the documents cited (e.g., if a page
is numbered “Page 1” but appears three pages into the exhibit, it is cited as “Page 1”).
1
Khan’s “motion to strike false or irrelevant facts” is moot (see [36] at 2); I accept as true
Khan’s factual allegations and disregard the Board’s assertions to the contrary.
2
2
contained within count titled, “Declaratory Judgment, or in the Alternative, Common
Law Writ of Certiorari”).3
The amended complaint is not only disorganized, it is much longer than it
needs to be. Rule 8 requires only a “short and plain statement of the claim showing
that the pleader is entitled to relief.” Fed. R. Civ. P. 8. See also Fed. R. Civ. P. 8(d)(1)
(“[e]ach allegation must be simple, concise and direct”). A complaint does not need to
contain every fact necessary to survive a motion for summary judgment. Suarez v.
W.M. Barr & Co., Inc., 842 F.3d 513, 523 (7th Cir. 2016). At 323 paragraphs and 56
pages, the Fifth Amended Complaint is neither short nor plain.
Still, Rule 8 also permits a party to set out “2 or more statements of a claim
either alternatively or hypothetically, either in a single count or defense or in
separate ones,” Fed. R. Civ. P. 8(d)(2), and while dismissal under Rule 8 may be
appropriate where a complaint is so long and poorly presented as to render it
unintelligible, it is not necessary here. See United States v. Lockheed-Martin Corp.,
328 F.3d 374, 376, 378 (7th Cir. 2003) (dismissal appropriate where complaint
contained 400 paragraphs over 155 pages with ninety-nine attachments); Stanard v.
Nygren, 658 F.3d 792, 794 (7th Cir. 2011) (dismissal appropriate where complaint
contained fifty-two pages, twenty-eight counts, multiple sentences longer than 300
words and so many grammatical and spelling errors that they were “too numerous to
This is all in addition to Khan’s other case against the Board, which is premised on a thirtysix page, 550-paragraph, eighteen-count Fifth Amended Complaint concerning the same
parties, many of the same facts, and a few of the same legal theories. See Khan et al. v. Board
Of Education Of The City Of Chicago et al., No. 16-cv-08668 (N.D. Ill. Sept. 5, 2016).
3
3
add ‘[sic]’ where required”). A more sensible complaint does not seem to be within
Khan’s counsel’s skill set, and it would be a waste of time to ask him to try. The
Board’s motion to dismiss the complaint in its entirety is denied.
B.
Rule 12(b)(6)
The Board moves to dismiss count one (breach of contract) for failure to state
a claim, [29] at 3–5, as barred by the statute of frauds, id. at 5–6, as untimely, id. at
6–7, for failing to identify compensable damages, id. at 7–8, and as barred by the
Illinois Human Rights Act, id. at 8; count two (due process violation) because the
Board is immune, id. at 9; count four because the Board is not subject to ERISA, id.
at 9–10; count six (First Amendment and Title VII retaliation) as duplicative and for
failure to state a claim, id. at 10–11; count nine (declaratory relief) for failing to
identify an actual controversy (i.e., for failure to state a claim), id. at 11–12, and
counts ten (common law writ of certiorari) and eleven (malicious prosecution) for
failing to state a claim. Id. at 12–13. Count one is dismissed as preempted by the
Illinois Human Rights Act, counts two and nine are dismissed for failure to state a
claim, and count six is dismissed as duplicative. Counts four, ten, and eleven are not
dismissed.
1.
Count One (Breach of Contract)
Khan’s Amended Complaint contains two counts for breach of contract: count
one addresses a sexual harassment policy allegedly contained with a set of rules the
Board adopted in 2010, [27] ¶¶ 181–194, and count three addresses two performance
contracts allegedly entered into in June of 2013 and July of 2017 between Khan and
the Aldridge Local School Council. Id. at ¶¶ 210–217. The Board attached two
4
documents to its motion to dismiss that purport to be the contracts addressed by count
three, see [29-1]; [29-2], but then did not move to dismiss count three. See [29]. These
two documents are not relevant to the motion to dismiss and Khan’s motion to exclude
them is denied as moot. See [36] at 1.
As for count one, Khan did not attach to her amended complaint a copy of the
“Rules of the Board of Education of the City of Chicago,” which form the basis of her
claim. [27] at ¶¶ 181–194. The Board tried to do it for her, attaching to its motion to
dismiss (as Exhibit C) a copy of what it said were the Board’s Rules. [29] at 3; [29-3].
Khan says Exhibit C is not the set of rules she is suing over. [36] at 4. In response to
the Board’s motion, and after requesting and receiving permission to do so at a status
hearing, Khan filed a supplementary brief that attached what she asserts are copies
of the policies that form the basis of her claim in count one. [53] (“in support of the
allegations in . . . Count I of the Amended Complaint . . . [Khan] respectfully draws
the court’s attention to” exhibits 1 and 2 to the supplemental brief); [53-1]; [53-2];
[54].
Normally, a court must convert a motion to dismiss to one for summary
judgment if it considers matters “outside the pleadings.” Fed. R. Civ. P. 12(d). See
also Fed. R. Civ. P. 10(c); N. Indiana Gun & Outdoor Shows, Inc. v. City of S. Bend,
163 F.3d 449, 452–53, (7th Cir. 1998) (the “pleadings” include the complaint, the
answer, and any documents attached as exhibits). There is an exception that allows
a court to consider documents omitted from the complaint but attached to a motion
to dismiss when those documents are referenced in the complaint and “central” to the
5
plaintiff’s claims. Brownmark Films, LLC v. Comedy Partners, 682 F.3d 687, 690 (7th
Cir. 2012); Levenstein v. Salafsky, 164 F.3d 345, 347 (7th Cir. 1998) (the “narrow
exception” is “aimed at cases interpreting, for example, a contract”). And normally,
when a document and a party’s description of that document conflict, the exhibit
controls. Forrest v. Universal Sav. Bank, F.A., 507 F.3d 540, 542 (7th Cir. 2007) (“[a]
court is not bound by the party's characterization of an exhibit and may
independently examine and form its own opinions about the document”).
The wrinkle here is that Khan argues that Exhibit C is not the contract. [36]
at 1 (Khan “has no claim arising from Exhibit C”). In essence, she challenges the
authenticity of the document the Board has submitted. So I decline to consider
Exhibit C. See Hecker v. Deere & Co., 556 F.3d 575, 582–83 (7th Cir. 2009) (declining
to extend the exception for documents outside the pleadings where the party opposing
their consideration disputes the documents’ authenticity) (citing Travel Over the
World v. Kingdom of Saudi Arabia, 73 F.3d 1423 (7th Cir. 1996)).
I will, however, consider Exhibits 1 and 2 to Khan’s supplemental brief, [53-1];
[53-2], because both the exception in Brownmark, 682 F.3d at 690, and another
exception for documents submitted by a plaintiff in response to a motion to dismiss,
see Geinosky v. City of Chicago, 675 F.3d 743, 745 n.1 (7th Cir. 2012) (when opposing
a Rule 12(b) motion, a plaintiff “may submit materials outside the pleadings to
illustrate the facts the [plaintiff] expects to be able to prove,” so long as those “new
elaborations” are consistent with the complaint), apply with equal force here, where
the documents are referenced throughout the complaint, central to Khan’s claims,
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and were voluntarily submitted by Khan herself to illustrate new facts consistent
with the allegations in her complaint.
The Board advances five arguments in favor of dismissing the first count of
Khan’s first amended complaint. [29] at 3–8. Ultimately, I agree with only one—the
Illinois Human Rights Act preempts count one.
Sexual harassment policies are not generally binding contracts. But they can
be when certain criteria—the traditional criteria for contract formation—are met.
Duldulao v. Saint Mary of Nazareth Hosp. Ctr., 115 Ill.2d 482, 490 (1987). Courts
have extended the rule from Duldulao (that an employee handbook can create
enforceable rights to a particular disciplinary procedure, even if that employee is atwill) to cover policies that promise other tangible benefits, Dow v. Columbus-Cabrini
Med. Ctr., 274 Ill.App.3d 653, 656 (1st Dist. 1995), as modified (Aug. 30, 1995)
(payment for unused sick days); DeFosse v. Cherry Elec. Prods. Corp., 156 Ill.App.3d
1030, 1035 (2nd Dist. 1987) (disability benefits), but have resisted the extension of
this rule to intangible benefits. Wexler v. Morrison Knudsen Corp., No. 99 C 6522,
2000 WL 1720344, at *4 (N.D. Ill. Nov. 15, 2000), Svigos v. Petry Television, Inc., No.
95 C 5899, 1996 WL 388416, at *4 (N.D. Ill. July 9, 1996). In Corluka v. Bridgford
Foods of Illinois, Inc., an Illinois court found that a sexual harassment policy was a
binding contract under Duldulao, and that the policy created an enforceable right for
breach if the defendant failed to “end any harassment employees may experience.”
284 Ill.App.3d 190, 195 (1st Dist. 1996). But I agree that “Corluka does not, however,
stand for the broader proposition that an ‘intangible work condition’ can formulate a
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basis for an employee’s assertion of a contractual right.” Wexler v. Morrison Knudsen
Corp., No. 99 C 6522, 2000 WL 1720344, at *6 (N.D. Ill. Nov. 15, 2000).
Nonetheless, “[a]ll that is required under Duldulao” at the motion-to-dismiss
stage “is that the plaintiffs allege that there was a promise based on the written policy
manual.” Langford v. Cty. of Cook, 965 F.Supp. 1091, 1103 (N.D. Ill. 1997). Khan’s
First Amended Complaint contains such an allegation. [27] ¶ 187 (“[t]he 2010 Rules
constituted an enforceable right for a promise of a work environment that was
reasonably free from sexual harassment”). Moreover, the documents submitted by
Khan contain language consistent with such a promise. [53-1] § 4-4(k) (“[a]ll
employees must comply with laws and Board policies and rules prohibiting
discrimination, including laws and policies prohibiting sexual harassment”); [53-2]
(the “Employee Discipline and Due Process Policy”) § 4-7 (“[s]exually harassing an
employee, student, or individual in violation of the Board’s Sexual Harassment
Policy” is an “Act of Misconduct” punishable by warning, suspension or discharge).4
In light of plaintiff’s assertions that these two policies are only a “partial” set of those
Khan expects to rely upon at trial, I cannot determine that, as a matter of law, the
policies lack sufficient promissory language to state a claim for breach of contract.
Similarly, Khan alleges that there are no disclaimers in the 2010 Rules, see
[27] ¶ 186 (“[t]he 2010 Rules did not contain any disclaimers to negate the promises
made”), and the rules she attached to her supplemental brief contain no such
Khan did not file a copy of the sexual harassment policy mentioned in Exhibit 2. See [53-2]
§ 4-7.
4
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disclaimers. See [53-1]. Even though the “Employee Discipline and Due Process
Policy” does contain a disclaimer, [53-2] § 1 (“this Policy should not be construed as a
contract”), and even though such disclaimers can form the basis of a successful motion
to dismiss, see Miller v. Illinois Bell Tel. Co., 157 F.Supp.3d 749, 758 (N.D. Ill. 2016);
Mooney v. Wyndham Worldwide Operations, Inc., No. 13 C 6592, 2014 WL 2959270,
at *2 (N.D. Ill. July 1, 2014), Khan’s contract claim could still be premised upon a
contractual right arising from the 2010 Rules and/or the “Sexual Harassment Policy.”
Again, it is too early to determine that, as a matter of law, there was no policy that
could support Khan’s claim for breach of contract.
Given Khan’s representation that her claim is based upon a written agreement,
see [53] at 1, the Board’s arguments about the statute of frauds, see [29] at 5–6, also
fail, as do the Board’s arguments about the statute of limitations contained within
the Illinois Tort Immunity Act. See [29] at 6–7 (“[t]o the extent that Plaintiff’s breach
claim is dependent upon an implied contract, she must comply with the one year
statute of limitations”).
And Khan has alleged compensable damages. Khan alleges that, as a
“proximate or direct” result of the Board’s breach, she resigned from her position and
suffered actual, compensatory, and consequential damages. [27] ¶¶ 193–94. Money
damages are awarded in breach-of-employment-contract cases, see Harden v. Playboy
Enterprises, Inc., 261 Ill.App.3d 443, 455 (1st Dist. 1993), and there is no requirement
that a pleading specify the type of damages sought. Wright & Miller, § 1235
Statement of Particular Matters – Contracts, 5 Fed. Prac. & Proc. Civ. § 1235 (3d ed.).
9
The Board’s final argument is persuasive: the Illinois Human Rights Act
preempts Khan’s claim. In Wootten v. Fortune Brands, Inc.,5 Wootten alleged that she
had been sexually harassed in violation of the sexual harassment provision of a policy
and procedures manual that was provided to her when she was hired. No. 98 C 4603,
1999 WL 705763, at *1 (N.D. Ill. Aug. 27, 1999). The court dismissed the claim as
preempted by the Illinois Human Rights Act because the defendant had “promised
merely to uphold the laws against discrimination” and the alleged breach was,
therefore, “inextricably linked to the alleged civil rights violation,” which was itself
preempted by the Illinois Human Rights Act. Id. at *3.6 See also Seehawer v.
Magnecraft Elec. Co., 714 F.Supp. 910, 912 (N.D. Ill. 1989); Rhodes v. Deere, No. 90
C 20336, 1991 WL 352612, at *10 (N.D. Ill. Oct. 18, 1991); Isaacson v. Keck, Mahin &
Cate, No. 92 C 3105, 1993 WL 68079, at *8 (N.D. Ill. Mar. 10, 1993). Count one is
dismissed.
Khan argues that none of the cases cited by the Board post-date the holding in Corluka. Not
only did Wootten post-date Corluka, it also expressly distinguished the holding for salient
reasons. Wootten v. Fortune Brands, Inc., No. 98 C 4603, 1999 WL 705763, at *3 (N.D. Ill.
Aug. 27, 1999) (“[f]irst, this Court is not bound by a decision by the Appellate Court of Illinois.
Second, the Corluka court cites no legal precedent for its overly broad holding that the IHRA
does not preempt contract law. Third, the Corluka court reached its holding with scant
analysis of the facts as applied to IHRA preemption law”) (citations omitted).
5
The Board’s arguments could be considered jurisdictional, because the Illinois Human
Rights Act deprives courts of “jurisdiction” over certain claims. 775 Ill. Comp. Stat. Ann. 5/8111(D) (“[e]xcept as otherwise provided by law, no court of this state shall have jurisdiction
over the subject of an alleged civil rights violation other than as set forth in this Act”). But
whether viewed as the failure to state a claim or the lack of jurisdiction, the result is the
same—a plaintiff cannot pursue a breach of contract claim that is properly understood to be
a civil rights claim.
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2.
Count Two (Due Process)
Count two of Khan’s amended complaint is titled, “Deprivation of Liberty
Interest/ Violation of Due Process/Defamation Per Se/ First Amendment.” [27]
¶¶ 195–209. The ensuing paragraphs make no further mention of a defamation claim.
See id. In Khan’s opposition to the Board’s motion to dismiss, Khan argues that the
defamation is a “necessary element” of the due process violation. [36] at 8. Khan then
cites to Santana v. Cook Cty. Bd. of Review, 679 F.3d 614, 621 (7th Cir. 2012), where
the Seventh Circuit addressed a due process claim that was based on a “stigma plus”
theory (implying that Khan’s is, too). See [36] at 8. Under a “stigma plus” theory, the
plaintiff brings a procedural due process claim based on a deprivation of a protected
liberty interest and attempts to show that he or she was both defamed and that the
defamatory statement “‘alter[ed] or extinguish[ed]’ ‘a right or status previously
recognized by state law.” Brown v. City of Michigan City, Indiana, 462 F.3d 720, 730
(7th Cir. 2006).
There is no need to parse Khan’s “stigma plus” theory: without a protectable
liberty interest at risk, the issue of whether the statements were defamatory is
inapposite. Hojnacki v. Klein-Acosta, 285 F.3d 544, 548 (7th Cir. 2002) (“mere
defamation by the government does not deprive a person of ‘liberty’ protected by the
Fourteenth Amendment, even when it causes ‘serious impairment of [one’s] future
employment’”).
The protected liberty interest Khan points to is limited. “It is the liberty to
pursue a calling or occupation, and not the right to a specific job, that is secured by
the Fourteenth Amendment.” Wroblewski v. City of Washburn, 965 F.2d 452, 455 (7th
11
Cir. 1992). In Wroblewski, the plaintiff, a potential marina operator, was “effectively
prevented . . . from obtaining any potential employment . . . in connection with the
City’s marina,” yet still, “the sphere from which [plaintiff] was excluded” could not
“properly be called ‘an occupation,’ like the practice of law.” Id. His claim was denied.
Id. at 457. See also Illinois Psychological Ass’n v. Falk, 818 F.2d 1337, 1344 (7th Cir.
1987) (“being a police officer is an occupation; being a police lieutenant is not. Being
a psychologist is an occupation; being a member of a hospital’s medical staff is not”);
McMahon v. Kindlarski, 512 F.3d 983, 988 (7th Cir. 2008) (the defendant must have
made it “virtually impossible for the employee to find new employment in his chosen
field”).
Count two says the Constitution was violated but never identifies a cause of
action that allows Khan to sue the Board. Assuming Khan imagines that right derives
from 42 U.S.C. § 1983, Khan’s rights are limited in another important way: “[A] local
government may not be sued under § 1983 for an injury inflicted solely by its
employees or agents.” Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658,
694–95 (1978); [43] at 8–9. “Instead, it is when execution of a government’s policy or
custom . . . inflicts the injury that the government as an entity is responsible under
§ 1983.” Id.
Khan has identified neither a protected liberty interest that was violated nor
a qualifying policy or custom. Khan would not state a claim even if she could show
that she had been shut out of every school in the city of Chicago. See Wroblewski, 965
F.2d at 455 (no due process violation where plaintiff “effectively prevented . . . from
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obtaining any potential employment . . . in connection with the City’s marina”). Nor
has Khan identified a policy or custom that caused her injury; according to count two,
the decision to terminate her contractual duties was the result of two isolated
hearings that the Board conducted on May 24, 2017, and June 9, 2017. [27] ¶ 252.
Count two is dismissed.
3.
Count Four (ERISA, or in the Alternative, for Declaratory Relief)
The Employee Retirement Income Security Act only applies to certain benefit
plans. See 29 U.S.C. § 1003. The law exempts plans “established and maintained” by
any agency or instrumentality of any state government or political subdivision, 29
U.S.C. § 1003(b)(1); 29 U.S.C. § 1002(32), such as a school. See Mudra v. Sch. City of
Hammond, No. 2:02CV260 PPS, 2004 WL 3318761, at *11 (N.D. Ind. Feb. 6, 2004).
Khan argues that there is an exception to this exemption that applies because the
Board elected to allow employees of private corporations to participate in the Board’s
benefit plan. [258] ¶ 495.
In DeBartolo v. Indian Prairie Sch. Dist. No. 204, the court suggested that the
plaintiff’s ERISA claim might have survived if the defendant school district had
allowed private employers to participate in their benefit plan. No. 08 C 995, 2008 WL
3009931, at *2 (N.D. Ill. Aug. 5, 2008). See, e.g., Livolsi v. City of New Castle, Pa., 501
F.Supp. 1146, 1150 (W.D. Pa. 1980); Brooks, 1990 WL 103572, at *2. There are
reasons to be skeptical of this holding. See Order Granting in Part, Denying in Part
the Board’s Motion to Dismiss the Fifth Amended Complaint, Khan et al. v. Board Of
Education Of The City Of Chicago et al., No. 16-cv-08668 (N.D. Ill. Nov. 28, 2018])
ECF No. [287]. Nonetheless, the Department of Labor has issued an advisory opinion
13
that says exactly what DeBartolo only suggests: a government plan can become
subject to ERISA if more than a de minimis number of private employees participate
in the plan. [276-3] at 2–3 (300 out of 25,221 participants is de minimis; 175,000 out
of 275,000 is not). Such constructions are “entitled to considerable weight.” Otto v.
Variable Annuity Life Ins. Co., 814 F.2d 1127, 1135 (7th Cir. 1986). Khan’s complaint
alleges that more than a de minimis number of private employees participate in the
plan. [27] ¶¶ 220–21 (“[a] substantial and more than de minimis number of employees
of private companies . . . participated in the CPS benefits programs,” including, for
instance, employees of various local charter schools). As a result, Khan’s claims
cannot be dismissed for failing to state a claim.
4.
Count Six (First Amendment/Title VII Retaliation)
The Board argues that Khan has brought the same claim twice. Courts have
“broad
discretion
to
dismiss
a
complaint
for
reasons
of
wise
judicial
administration . . . whenever it is duplicative of a parallel action already pending in
another federal court.” McReynolds v. Merrill Lynch & Co., 694 F.3d 873, 888 (7th
Cir. 2012) (quotations omitted). “A suit is duplicative if the claims, parties, and
available relief do not significantly differ between the two actions.” Id. (quotations
omitted). See also Serlin v. Arthur Andersen & Co., 3 F.3d 221, 223 (7th Cir. 1993)
(“[d]istrict courts are accorded a great deal of latitude and discretion in determining
whether one action is duplicative of another”) (citations omitted).
Here, count six of the first amended complaint alleges Khan engaged in
protected speech, [27] ¶ 253, that the Board retaliated against Khan for engaging in
that protected speech, [27] ¶ 256, and that the Board’s actions violated the First
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Amendment. See [27] at 37. The complaint seeks money damages. Id. ¶ 258. In Khan’s
other case, Khan et al. v. Board Of Education Of The City Of Chicago et al., No. 16cv-08668, ECF No. 258 (N.D. Ill.), count five of the Fifth Amended Complaint, titled,
“Count V Against the Board Under 42 U.S.C. § 1983 Due Process/First
Amendment/Equal Protection – Monell Claim,” alleges that Khan engaged in
protected speech, [258] ¶¶ 120–123, that the Board retaliated against Khan for
engaging in that protected speech, [258] ¶ 124 (a)–(j), and that the Board’s actions
violated the First Amendment. See [258] at 10–14. That complaint seeks money
damages. See [258] ¶ 130.
Khan is right that the two complaints mention different events—both when
listing examples of Khan’s protected speech and when listing examples of the Board’s
retaliatory conduct. Compare Khan et al. v. Board Of Education Of The City Of
Chicago et al., No. 16-cv-08668 ECF No. 258 ¶¶ 120–124 (N.D. Ill.) (Khan’s protected
speech included sending confidential complaints to the Office of the Inspector
General, the Cook County State Attorney’s Office, and others), with [27] ¶¶ 249, 252
(Khan’s protected speech included the filing of her original case (No. 16-cv-08668),
and her appearances before the Board to oppose administrative proceedings). But
there is also overlap. Compare Khan et al. v. Board Of Education Of The City Of
Chicago et al., No. 16-cv-08668 ECF No. 258 ¶ 122 (N.D. Ill.) (protected speech
included complaint sent to United States Department of Education) with [27] ¶ 251
(protected speech included complaint sent to United States Department of
Education).
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The claims, parties and available relief do not differ significantly. Count six is
dismissed as duplicative. Khan can proceed with her First Amendment Retaliation
claim in her other case. It is unimportant that, as a result, the operative complaint
in that case may not include every fact that forms the basis of a viable First
Amendment claim. It does not need to. Suarez v. W.M. Barr & Co., Inc., 842 F.3d 513,
523 (7th Cir. 2016) (“a complaint need not contain every fact necessary to survive a
motion for summary judgment”).
5.
Count Nine (Declaratory Relief)
Count nine of the first amended complaint asks for a declaratory judgment
settling disputes the parties have about various facts. See, e.g., [27] ¶¶ 296–297
(“[Khan] disagrees with the Board’s implication that she is still employed by the
Board, or that she remained employed after August 24, 2016,” and “[a] controversy
therefore exists as to whether [Khan] remained a Board employee after August 24,
2016 that could affect Khan’s tax liability”). The Board says that the disputes in count
nine do not constitute “controversies” as that word is used in the Declaratory
Judgment Act. See 28 U.S.C. § 2201 (“[i]n a case of actual controversy within its
jurisdiction . . . any court of the United States . . . may declare the rights and other
legal relations of any interested party seeking such declaration, whether or not
further relief is or could be sought”) (emphasis added).
The question in actions for declaratory judgment is “whether the facts alleged,
under all the circumstances, show that there is a substantial controversy, between
parties having adverse legal interests, of sufficient immediacy and reality to warrant
the issuance of a declaratory judgment.” Maryland Cas. Co. v. Pac. Coal & Oil Co.,
16
312 U.S. 270, 273 (1941); Tempco Elec. Heater Corp. v. Omega Eng’g, Inc., 819 F.2d
746, 749 (7th Cir. 1987) (declaratory judgments are appropriately sought in two
circumstances: “(1) The controversy has ripened to a point where one of the parties
could invoke a coercive remedy (i.e. a suit for damages or an injunction) but has not
done so; and (2) Although the controversy is real and immediate, it has not ripened
to such a point, and it would be unfair or inefficient to require the parties to wait for
a decision”).
The situations presented by Khan fit neither situation described in Tempco.
Khan could not sue for money damages or an injunction over any of the
“controversies” she has identified, nor would it be inefficient or unfair to require the
parties to wait for a decision on the many other claims that Khan has brought. This
is in part because the relevant paragraphs in Khan’s complaint cite no action that the
Board has taken or plans to take, and no legal right that Khan enjoys that might
prevent them from doing so. I decline to entertain the declaratory action in count
nine. Tempco, 819 F.2d at 747 (“federal courts have discretion to decline to hear a
declaratory judgment action, even though it is within their jurisdiction”). Count nine
is dismissed.
6.
Count Ten (Common Law Writ of Certiorari)
The Board moves to dismiss count ten because Khan failed to pursue her writ
of certiorari remedy in the Circuit Court of Cook County. Neither of the cases the
Board cites establish an exhaustion requirement for Illinois writ of certiorari claims.
See Fostiak v. Byron Cmty. Unit Sch. Dist. 226, No. 11 C 50231, 2012 WL 6727535,
at *2 (N.D. Ill. Dec. 27, 2012); Young-Gibson v. Bd. of Educ. of City of Chicago, 2011
17
IL App (1st) 103804, ¶ 56, 959 N.E.2d 751, 763, as modified on reh’g (Nov. 23, 2011).
Khan, attempting to defend her writ of certiorari “claim,” says that the remedy it
would provide in state court is “inadequate,” concludes that she will be prejudiced if
she is forced to litigate the case in state court because she would not be afforded the
opportunity to conduct discovery, and asks the Court, in the alternative, to stay her
writ of certiorari claim. [36] at 13–14.
A common law writ of certiorari is not so much a “claim” as it is a request that
a state court review a quasi-judicial decision; it is a jurisdictional hook that can be
used to obtain review of some other cognizable legal claim. As the explained in Brown
v. Duncan, 361 Ill.App.3d 125, 131 (1st Dist. 2005),
The common law writ of certiorari was developed to provide
a means whereby a petitioner who was without avenue of
appeal or direct review could obtain limited review over an
action by a court or other tribunal exercising quasi-judicial
functions. The purpose of the writ is to have the entire
record of the inferior tribunal brought before the court to
determine, from the record alone, that the inferior tribunal
proceeded according to the applicable law. Quasi-judicial
hearings are those which concern agency decisions
affecting a small number of people on individual grounds
based on a particular set of disputed facts that have been
adjudicated.
Federal courts have jurisdiction over supplemental, state law claims for common law
certiorari, and review those claims much in the same way an Illinois state court would
review the decision of the tribunal exercising quasi-judicial functions: the question is
whether, “the record contains any evidence which fairly tends to support the agency’s
findings.” Bodenstab v. Cty. of Cook, 569 F.3d 651, 661 (7th Cir. 2009). Federal courts
also have discretion over whether to issue a writ and should not issue one “in the
18
absence of substantial injury or injustice to the petitioner.” Piekosz-Murphy v. Bd. of
Educ. of Cmty. High Sch. Dist. No. 230, 858 F.Supp.2d 952, 962 (N.D. Ill. 2012).7 The
Board has not demonstrated that exhaustion is required and has advanced no other
reason count ten should be dismissed. Khan should have an opportunity for court
review of the Board’s decision. The Board’s motion to dismiss Khan’s request for writ
of certiorari is denied. The count is understood to challenge—under the principles of
court review of agency decisions—the removal of Khan from her position as principal
under 105 ILCS 5/34-8.3(d).
7.
Count Eleven (Malicious Prosecution)
The Board argues that Khan’s malicious prosecution claim should be dismissed
because malicious prosecution claims are only appropriate in response to criminal
proceedings that result in a disposition indicative of innocence, and because Khan
has failed to state that the Board lacked probable cause to bring the proceeding in
the first place. [29] at 13 (citing Porter v. City of Chicago, 393 Ill.App.3d 855, 858 (1st
Dist. 2009)). Malicious prosecution claims can be brought under Illinois law in
response to “civil judicial” as well as criminal proceedings, Swick v. Liautaud, 169
Ill.2d 504, 512 (1996), but the Board argues that its termination proceedings (under
105 ILCS 5/34-85) were neither criminal nor civil. [43] at 15. Neither Khan nor the
Board cite any authority on the issue. Precedent suggests that administrative
proceedings might not qualify as civil judicial proceedings, see Greer v. DeRobertis,
This all being said, Khan’s complaint is improper insofar as it seeks to assert a cause of
action for writ of certiorari against the Board. Khan cannot sue the Board for writ of certiorari
any more than Khan can sue the Board for “interlocutory appeal.” These are procedural
mechanisms, not causes of action.
7
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568 F.Supp. 1370, 1376 (N.D. Ill. 1983) (malicious prosecution claims do not extend
to prison disciplinary proceedings), and since Illinois disfavors the tort, Cult
Awareness Network v. Church of Scientology Int’l, 177 Ill. 2d 267, 286 (1997), I
conclude that the state supreme court would not authorize the claim here.
A malicious prosecution claim would also require “special injury” going “beyond
the usual expense, time and annoyance involved in defending a lawsuit.” Indep. Plus,
Inc. v. Walter, 2012 IL App (1st) 111877, ¶ 18. Khan’s complaint alleges that she
suffered “special damages” including the “loss of insurance and retirement benefits.”
[27] ¶ 317. But these are the ordinary consequences of loss of employment, and the
complaint also alleges that the 34-85 hearing never got off the ground; the
proceedings were withdrawn shortly after being instituted and (it appears) did not
directly result in formal punishment. See [27] ¶¶ 312–13. No special injury is
attributed to the underlying administrative process, so the complaint fails to state a
malicious prosecution claim (even if I inferred that abandoning the 34-85 hearing
amounted to a vindication for Khan).
8.
Count Eleven (Violation of 29 U.S.C. § 1166)
In addition, the Board argues that Khan’s claim under the “Consolidated
Omnibus Budget Reconciliation Act”, or “COBRA,” should be dismissed because the
Board was not required to provide the types of notices that Khan alleges the Board
failed to provide. [29] at 13. See 29 U.S.C § 1166(a)(2) (“the employer of an employee
under a plan must notify the administrator of a qualifying event” such as
termination); (a)(4) (“the administrator shall notify . . . any qualified beneficiary with
respect to such event”); 29 U.S.C. § 1132(c)(1) (“[a]ny administrator (A) who fails to
20
meet the requirements of [] section 1166[(a)(4)] of this title, . . . may in the court's
discretion be personally liable to such participant or beneficiary in the amount of up
to $100 a day from the date of such failure or refusal, and the court may in its
discretion order such other relief as it deems proper”); 29 U.S.C. §§ 1132(a)(1)(A);
(c)(1) (individuals may bring civil action for violations of section 1166). Khan responds
that the Board was the plan’s sponsor and that, as such, it had a notification duty. In
certain circumstances—including those where the employer is also the “plan
sponsor”—COBRA’s notification requirements can apply to the employer. Fenner v.
Favorite Brand Int’l, Inc., 25 F.Supp.2d 870, 874–75 (N.D. Ill. 1998). See also [27]
¶ 314 (Khan alleging that the Board “sponsors its health insurance plan”). The Board
left this point unaddressed in its reply. Its motion to dismiss count eleven is denied
insofar as that motion addresses the notification requirements described in 29 U.S.C
§ 1166.
IV.
Conclusion
For the foregoing reasons, the Board’s motion [29] is granted in part, denied in
part. Counts one, two, six, and nine are dismissed, as is the malicious prosecution
claim. If Khan wants to amend the complaint, she must file a motion asking for
21
permission and attach her proposed amended complaint as an exhibit. If the proposal
is as unwieldy as the current complaint, the motion will be summarily denied.
ENTER:
___________________________
Manish S. Shah
United States District Judge
Date: November 28, 2018
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