Inojosa v. Board of Trustees of the City Colleges of Chicago, Community College District 508

Filing 16

ORDER: The Court grants-in-part and denies-in-part CCC's motion to dismiss. Status is set for 10/13/2020 at 10:20 a.m. It is so ordered. Signed by the Honorable Charles P. Kocoras on 9/15/2020. For the telephonic status hearing, parties are to use the following call-in number: [phone], conference code 8819984. Counsel of record will receive an email the morning of the telephonic hearing with instructions to join the call. Mailed notice(vcf, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
FRANKLIN INOJOSA,
Plaintiff,
v.
BOARD OF TRUSTEES OF THE CITY
COLLEGES OF CHICAGO, COMMUNITY
COLLEGE DISTRICT 508, a municipal
corporation,
Defendant.

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20 C 1114
Judge Charles P. Kocoras

ORDER
Before the Court is Defendant’s Board of Trustees of the City Colleges of
Chicago, Community College District 508’s (“CCC”) Motion to Dismiss Franklin
Inojosa’s (“Inojosa”) Complaint. For the following reasons, the Court grants-in-part
and denies-in-part CCC’s Motion.
STATEMENT
For purposes of this motion, the Court accepts as true the following facts from
the complaint. Alam v. Miller Brewing Co., 709 F.3d 662, 665–66 (7th Cir. 2013). All
reasonable inferences are drawn in Inojosa’s favor. League of Women Voters of
Chicago v. City of Chicago, 757 F.3d 722, 724 (7th Cir. 2014).
Inojosa is a full-time professor of World Languages and English Language
Learning at Harold Washington College (“HWC”), one of the seven colleges in the

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CCC system. At HWC, Inojosa’s primary discipline is Spanish. Inojosa has worked as
a CCC professor since 2001 and has held the rank of full professor at HWC since 2009.
Inojosa is (1) 64 and the oldest member of his department; (2) one of a few Hispanic
full professors at HWC; (3) one of three faculty members born outside the United
States; (4) the only member of Venezuelan origin; and (5) the only male among the
three highest seniority holders in the department.
The complaint principally alleges that Inojosa is subject to discrimination at
HWC in the way his courses are assigned, arranged, and facilitated. HWC course
selection for professors occurs in part under contract and is based on seniority and an
alternate “round robin” process. Under this process, professors first fulfill their course
obligations inside their department and only then teach courses outside their department
when there are no remaining intra-departmental courses.
In 2009, Inojosa taught courses outside of his department and accordingly did
not receive courses based on either the seniority or the “round robin” process. Inojosa’s
course schedule was more onerous as a result in part because his courses were scheduled
at worse days and times. These difficulties continued through 2018 when Inojosa
requested the opportunity to teach courses within his department. Thereafter, HWC did
not honor his seniority and he received even less favorable courses. Inojosa had certain
low-enrollment courses cancelled at the last minute which forced him to conduct
additional preparation. However, other non-Hispanic and non-Venezuelan faculty were
still allowed to teach low-enrollment courses and did not similarly suffer a heightened
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preparatory burden as a result. Inojosa has also not been allowed to select available
computer classrooms for online courses as other faculty members have.
The complaint also alleges that Inojosa was not given a slate of classes after a higher
seniority faculty member went on sabbatical in the fall of 2019. The classes were
cancelled instead of being given to Inojosa. Inojosa complained about discrimination
to HWC through established avenues for redress and HWC has continued to place
limitations on his ability to teach. Inojosa’s complaint attaches an Equal Employment
Opportunity Commission (“EEOC”) right-to-sue letter dated November 21, 2019,
following his November 15, 2019 submission of an EEOC charge. 1
Against this factual backdrop, Inojosa claims: (1) national origin discrimination
prohibited by Title VII, 42 U.S.C. § 2000e-2 (Count I); (2) race/color discrimination
prohibited by Title VII, (Count II); (3) age discrimination prohibited by the Age
Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 623(a)(1) (Count III); (4)
discrimination prohibited by Title VI of the Civil Rights Act, 42 U.S.C. § 2000d et seq
(Count IV); (5) sex discrimination prohibited by Title VII (Count V); and (6) retaliation
prohibited by Title VII (Count VI).
CCC moved to dismiss under Federal Rule of Civil Procedure 12 and makes
three principle arguments. First, that Inojosa’s complaint should be dismissed for lack
of subject-matter jurisdiction because the Court does not have jurisdiction over the

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Inojosa’s EEOC right-to-sue letter was attached to the complaint and is, therefore, considered part of the
complaint. N. Indiana Gun & Outdoor Shows, Inc. v. City of South Bend, 163 F.3d 449, 452–53 (7th Cir.
1998).
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interpretation of a collective bargaining agreement (“CBA”). Second, that Counts V
and VI, alleging sex discrimination and retaliation, respectively, fail to properly state a
claim. And third, that Inojosa is not entitled to punitive or exemplary damages because
CCC is a municipal corporation. We address each argument in turn.
1. Subject Matter Jurisdiction
CCC first argues that Inojosa’s complaint “inherently involves” the
interpretation of a CBA and that we lack subject-matter jurisdiction over Inojosa’s
federal employment discrimination claims as a result. We disagree.
In general, the Court has “original jurisdiction of all civil actions arising under
the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. “[W]hen
federal law creates a private right of action and furnishes the substantive rules of
decision, the claim arises under federal law, and district courts possess federal-question
jurisdiction under § 1331.” Mims v. Arrow Fin. Servs., LLC, 565 U.S. 368, 378–79
(2012). States do not have the power “to enlarge or contract federal jurisdiction.” Zahn
v. N. Am. Power & Gas, LLC, 815 F.3d 1082, 1087 (7th Cir. 2016) (internal quotation
omitted). Nor is there anything “novel about recognizing that substantive rights in the
labor relations context can exist without interpreting collective-bargaining
agreements.” Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399, 411 (1988).
CCC has not persuaded us that a state statute which precludes courts from
exercising jurisdiction over state common-law claims somehow divests this Court of
jurisdiction over claims arising under federal law. See Chicago Teachers Union Local
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1 v. Bd. of Educ. of City of Chicago, 2018 WL 1561724, at *3 n.1 (N.D. Ill. 2018)
(appropriately characterizing the narrow issue as “whether a state statute precludes
courts from exercising jurisdiction over a state common-law claim”).

Inojosa’s

complaint does not directly allege an “unfair labor practice” under Illinois law and is
instead “outside the CBA.” 2 Ferkel v. Bd. of Educ. of City of Chicago, 45 F. Supp. 3d
824, 838 (N.D. Ill. 2014). Indeed, we see little indication that the federal law allegations
are somehow reliant on Inojosa’s “contractual rights.” See Pryner v. Tractor Supply
Co., 927 F. Supp. 1140, 1146 (S.D. Ind. 1996), aff'd, 109 F.3d 354 (7th Cir. 1997).
The instant dispute does not involve interpreting contractual language to resolve
Inojosa’s claims. “If that were an accurate description of [Inojosa’s] claims, we would
agree” with CCC. Rabe v. United Air Lines, Inc., 636 F.3d 866, 872-73 (7th Cir. 2011).
Instead, the rights Inojosa asserts arise under federal employment discrimination laws
which are “independent of” any CBA. Id. at 873. “The mere mention of or reference
to” a contract in Inojosa’s complaint does not automatically render it non-justiciable.
Id. This is especially true because the “principal focus” of Inojosa’s complaint is the
“subjective reason[]” underlying CCC’s actions which does not “require the [C]ourt to
interpret” a CBA. Id.

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The Court notes that there is no citation to or attachment of any CBA to the complaint or CCC’s motion.
Even if course selection rights do “derive[] from” a CBA, the thrust of the complaint concerns CCC’s
discriminatory actions as a matter of federal employment discrimination law—not state common law.
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CCC’s citation to Cessna v. City of Danville, among other Illinois cases, does
not prevent us from exercising jurisdiction. 296 Ill. App. 3d 156 (1998). Because
Inojosa’s claim depends on a “factual inquiry” into the existence of discrimination,
rather than a dispute over the meaning of the CBA itself, we exercise jurisdiction.
Carlson v. CSX Transp., Inc., 758 F.3d 819, 833 (7th Cir. 2014). Indeed, under Illinois
law, only where an employee’s claim arises “entirely out of a collective bargaining
agreement” does the employee lack standing “without first exhausting any remedies
provided for in the agreement.” Gelb v. Air Con Refrigeration & Heating, Inc., 356 Ill.
App. 3d 686, 695 (2005) (emphasis added). “[T]he mere existence of a dispute between
an employee and an employer is insufficient to make the disputed matter subject to” the
CBA. Id. (emphasis added). Thus, as here, where Inojosa’s right arises “from another
statute,” the CBA does not govern. Semmens v. Bd. of Educ. of Pontiac Cmty. Consol.
Sch. Dist. No. 429, Livingston Cty., 190 Ill. App. 3d 174, 179 (1989).
Accordingly, we exercise subject-matter jurisdiction over Inojosa’s claims. 3

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CCC’s argument on reply—notably in tandem with a 12(b)(1) not a 12(b)(6) argument—that Inojosa has
not pled an adverse employment action does not preclude subject-matter jurisdiction. Because CCC makes
this argument for the first time in its reply brief, it is waived. See Niedermaier v. Warren Rosen & Co.,
2012 WL 1142472, at *2 (N.D. Ill. 2012) (noting the “familiar rule that arguments raised for the first time
in a reply brief are waived”). In addition, CCC notes that it “is not insisting that the evidentiary value of
these actions be evaluated at this early stage[.]” We agree that a motion to dismiss is not the proper vehicle
for the disposition of Inojosa’s claims.
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2. Motion to Dismiss Counts V And VI For Failure To State A Claim
CCC moves to dismiss Inojosa’s sex discrimination claim and retaliation claim
under Federal Rule of Civil Procedure 12(b)(6). The Court addresses each claim in
turn.
a. Sex Discrimination Claim Under Title VII
CCC argues that Inojosa has failed to state a claim for sex discrimination under
Title VII because Inojosa has failed to allege an “additional factor” or something “fishy”
as Gore v. Indiana Univ., 416 F.3d 590 (7th Cir. 2005) requires at the summary
judgment stage. We disagree.
Notably, we recently rejected CCC’s exact contention in Phillips v. Baxter, 2020
WL 2197842, at *6 (N.D. Ill. 2020) (Kocoras, J.). There, we denied a motion to dismiss
because the Gore analysis concerns proof at the summary judgment stage, not on a
motion to dismiss. We noted that the Seventh Circuit has held that “the pleading
standards in [sex discrimination] cases are different from the evidentiary burden a
plaintiff must subsequently meet when using the method of indirect proof under
McDonnell Douglas.” Luevano v. Wal-Mart Stores, Inc., 722 F.3d 1014, 1028 (7th Cir.
2013). Accordingly, we allowed Baxter’s claim to proceed.
We see no reason to deviate from Baxter here.

Generally, employment

discrimination claims must adhere to a minimal pleading standard.

Tamayo v.

Blagojevich, 526 F.3d 1074, 1084 (7th Cir. 2008); E.E.O.C. v. Concentra Health Servs.,
Inc., 496 F.3d 773, 781 (7th Cir. 2007). Inojosa has met that standard: he has pled that
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he is within a protected category based on his sex and that different terms and conditions
of employment were imposed on him by CCC because of his sex. Specifically, Inojosa
claims that CCC gave him less desirable courses than other faculty; cancelled Inojosa’s
courses at the last minute which increased his preparatory burden; and declined to allow
Inojosa to select available computer classrooms needed for teaching hybrid-blended
courses.
Taken together, these allegations are enough to put CCC on notice of the claim
and the grounds upon which it rests. Accordingly, we deny CCC’s motion to dismiss
Inojosa’s sex discrimination claim.
b. Retaliation
CCC also argues that Inojosa has failed to state a claim for retaliation under Title
VII because Inojosa’s complaint has not adequately alleged “but-for” causation or a
discrete retaliatory act sufficient to establish an inference of discrimination. On both
fronts, we disagree.
“Pleading a retaliation claim under Title VII requires the plaintiff to allege that
she engaged in statutorily protected activity and was subjected to an adverse
employment action as a result. The protected activity must be specifically identified.”
Carlson, 758 F.3d 819, 828 (7th Cir. 2014) (quotations omitted).
Inojosa has done just that: his complaint attaches an Equal Employment
Opportunity Commission right-to-sue letter following his submission of an EEOC
charge; he alleges that he complained about discrimination using “established avenues”
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for redress; and he alleges that he suffered discrimination, including limitations on his
ability to select courses and classroom facilities, as a result.
Both of CCC’s specific arguments in support of dismissal do not persuade us
otherwise. CCC’s first contention that Inojosa must establish but-for causation as raised
by Univ. of Texas Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 339 (2013), among other
cases, is as we observed in Baxter, a question of proof, not pleading. See Baxter, 2020
WL 2197842, at *6. And second, that discrimination against Inojosa may have been
“ongoing” does not itself fail to state a claim under Rule 12(b)(6); if anything, we must
view his complaint through that lens. Carlson, 758 F.3d at 829. Indeed, the Seventh
Circuit cautioned in Carlson that an event-by-event “parsing” in the context of a
retaliation claim “los[es] sight of the bigger picture” which is “plausible and survive[s]
Rule 12(b)(6).” Id.; see also Conner v. Bd. of Trustees for Univ. of Illinois, 2019 WL
5179625, at *8 (N.D. Ill. 2019) (denying a motion to dismiss where there was ongoing
retaliation).
Accordingly, we deny CCC’s motion to dismiss Inojosa’s Title VII retaliation
claim.
3. Punitive and Exemplary Damages
CCC moves to strike Inojosa’s request for punitive or exemplary damages
because such damages are not recoverable against a municipal corporation like CCC.
Inojosa agrees that punitive damages should be stricken from all counts relying arising
under Title VI and VII (Counts I, II, IV, V and VI). Accordingly, the Court strikes
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Inojosa’s request for punitive damages in Counts I, II, IV, V and VI. See Shaikh v.
Watson, 2011 WL 589638, at *2 (N.D. Ill. 2011) (granting motion to dismiss punitive
damages claim in favor of CCC because punitive damages are “barred under the Local
Governmental and Governmental Employees Tort Immunity Act”).
Inojosa argues, and CCC does not refute, that Inojosa’s claim arising under the
ADEA allows the recovery of “liquidated damages” against a municipality like CCC
Potence v. Hazleton Area Sch. Dist., 357 F.3d 366, 373 (3d Cir. 2004) (concluding that
the “language of the ADEA itself makes it clear that Congress intended to subject
municipalities” “to the liquidated damages provision of the ADEA”) (citing Orzel v.
City of Wauwatosa Fire Dep't, 697 F.2d 743, 759 (7th Cir.1983)). Accordingly, Inojosa
may maintain his claim for liquidated damages under the ADEA (Count III).
CONCLUSION
For the reasons stated above, the Court grants-in-part and denies-in-part CCC’s
motion to dismiss. Status is set for 10/13/2020 at 10:20 a.m. It is so ordered.

Dated: 9/15/2020
_________________________
Charles P. Kocoras
United States District Judge

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