Hatcher v. Cheng et al

Filing 70

ORDER granting in part and denying in part 39 Joint MOTION to Dismiss for Failure to State a Claim in Plaintiff's Amended Complaint filed by Kimberly Kempf-Leonard, Board of Trustees of Southern Illinois University, and Rita Cheng. Counts 2, 3, and 4 of the Amended Complaint (Doc. 22) are DISMISSED with prejudice.The Clerk is DIRECTED to terminate Rita Cheng and Dr. Kimberly Kempf-Leonard as Defendants and to enter judgment accordingly at the conclusion of this case.This case shall proceed on Count 1 against Defendant Board of Trustees of Southern Illinois University. The dispositive motions deadline in this case is RESET to September 9, 2014. Signed by Judge Nancy J. Rosenstengel on 8/7/2014. (ajt)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
DR. LAURA J. HATCHER,
Plaintiffs,
vs.
RITA CHENG, BOARD OF TRUSTEES
OF SOUTHERN ILLINOIS
UNIVERSITY, DR. KIMBERLY
KEMPF-LEONARD,
Defendants.

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Case No. 3:13-CV-00407-NJR-SCW

MEMORANDUM AND ORDER
ROSENSTENGEL, District Judge:
This matter comes before the Court on Defendants’ Joint Motion to Dismiss for
Failure to State a Claim filed pursuant to Rule 12(b)(6) of the Federal Rules of Civil
Procedure (Doc. 39). A hearing on the motion was held on July 28, 2014, and the motion
was taken under advisement. For the following reasons, the motion to dismiss is
granted, in part, and denied, in part.
A. Facts
Plaintiff Dr. Laura Hatcher was employed with Southern Illinois University
(“SIU”) as an Assistant Professor in the Department of Political Science (“Department”),
in the College of Liberal Arts (“CLA”) from the fall of 2006 until the summer of 2013.
From 2006-2012, Hatcher was a “tenure-track” professor, meaning she would ultimately
be considered for tenure at a future date. That process began in October 2011. If

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approved by SIU, Hatcher would have been tenured beginning in the fall of 2012. If
denied, Hatcher’s tenure-track professorship would be converted to a term position
beginning in the fall of 2012 and ending in May 2013.
Hatcher initially received positive results in the tenure approval process. She
received a majority of positive votes for tenure from the faculty in her Department. The
Chair of the Department recommended her for tenure. The tenure committee of the CLA
voted in her favor.
In November of 2011,1 however, Hatcher’s tenure approval process went awry
after a discussion with the Dean of the CLA, Defendant Dr. Kimberly Kempf-Leonard.
Hatcher raised concerns, which were relayed to her by female students in the
Department, to Kempf-Leonard concerning non-remedied sexual harassment of female
students. Hatcher believed the problems were due to the ineffectiveness of SIU’s current
sexual harassment policy. The female students had confided in Hatcher because she was
the senior female faculty in the Department. Kempf-Leonard acknowledged Hatcher’s
concerns but failed to address them. Just two weeks later, Kempf-Leonard ignored the
previous favorable results of Hatcher’s tenure approval process and denied her
application.

Instead,

Kempf-Leonard

recommended

tenure

for

an

allegedly

inferiorly-qualified male assistant professor in Hatcher’s Department, who received

The allegations in the Count 4 of the complaint state that the series of events
concerning Hatcher and Kempf-Leonard occurred in November of 2012. See Doc. 22 p.
8-9. This appears to be a typographical error because other parts of the complaint clearly
indicate that the application approval process was occurring in October-November of
2011, and Hatcher had already been denied tenure by November of 2012.
1

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fewer positive departmental votes in favor of tenure than Hatcher.
On March 1, 2012, Dr. John Nicklow (“Nicklow”), SIU Provost, sent a letter to
Hatcher officially denying her application for tenure. Hatcher’s professorship was
accordingly converted to a one-year term for the 2012-13 academic year. Hatcher
responded by filing a charge of discrimination with the Equal Employment Opportunity
Commission (“EEOC”) on October 3, 2012. Subsequently, Hatcher appealed the denial of
her tenure to the SIU Judicial Review Board (“JRB”), and a hearing was held. Nicklow
testified at the hearing and told the JRB that Hatcher had filed an EEOC charge of
discrimination. On October 18, 2012, the JRB unanimously decided that Hatcher should
receive tenure and overturned Nicklow’s decision. The JRB panel’s decision made
reference to the testimony of Hatcher’s colleague, who indicated that Hatcher was
subjected to a hostile work environment as a result of her report of sexual harassment
against a male faculty member. Hatcher was a mandated reporter under the terms of
SIU’s sexual harassment policy.
The JRB panel’s ruling was forwarded to the SIU Chancellor, Defendant Rita
Cheng, on October 29, 2012. Cheng overturned the JRB panel’s finding on November 27,
2012. Hatcher’s employment with SIU terminated in May of 2013.
B. Procedural History
On April 26, 2013, Dr. Hatcher filed a civil rights complaint pursuant to 42 U.S.C.
§§ 1983, 1988, and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.,
alleging various violations of rights guaranteed under federal law (Doc. 2). An amended

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complaint was filed on November 26, 2013 (Doc. 22) containing the following Counts:
Count 1: Employment discrimination (sex) in violation of Title VII of the
Civil Rights Act of 1964 against Board of Trustees of Southern Illinois
University;
Count 2: Retaliation for activity protected by Title VII of the Civil Rights
Act of 1964 against Board of Trustees of Southern Illinois University;
Count 3: Denial of due process rights guaranteed under the 14th
Amendment to the U.S. Constitution against Rita Cheng, individually;
Count 4: Retaliation for activity protected by the First Amendment to the
U.S. Constitution against Dr. Kimberly Kempf-Leonard, individually.
(id.). The instant motion to dismiss was filed on December 23, 2013, as to all Counts (Doc.
39). In May 2014, the case was reassigned to the undersigned District Judge from the
docket of Chief Judge David R. Herndon.
C. Applicable Standard
A party may assert by motion the defense of failure to state a claim upon which
relief can be granted. FED. R. CIV. P. 12(b)(6). “Federal Rule of Civil Procedure 8(a)(2)
requires only ‘a short and plain statement of the claim showing that the pleader is
entitled to relief,’ in order to ‘give the defendant fair notice of what the ... claim is and the
grounds upon which it rests…’” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct.
1955, 1964, 167 L. Ed. 2d 929 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2
L.Ed.2d 80 (1957)). While detailed factual allegations are not required, a civil complaint
must consist of more than just “labels and conclusions, and a formulaic recitation of the
elements of a cause of action…” Id.

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In deciding a Rule 12(b)(96) motion to dismiss for failure to state a claim, a court
must construe the complaint in the light most favorable to the plaintiff, accept as true all
well-pleaded facts alleged, and draw all possible inferences in her favor. Justice v. Town of
Cicero, 577 F.3d 768, 771 (7th Cir. 2009). “To survive a Rule 12(b)(6) motion to dismiss, a
complaint must ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (citing 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.” Id. (citing Twombly, 550
U.S. at 556). “Where a complaint pleads facts that are ‘merely consistent with’ a
defendant’s liability, it ‘stops short of the line between possibility and plausibility of
entitlement to relief.’” Id. (quoting Twombly, 550 U.S. at 557.).
D. Count 1
Defendant SIU Board of Trustees (“SIU”) asserts that Count 1 must be dismissed
because Hatcher does not allege any factual circumstances that raise a meaningful
inference of gender discrimination. Specifically, SIU points to paragraph 45 of the
amended complaint as an example of “bald, conclusory, unsupported assertion” that
United States Supreme Court has found to be insufficient (Doc. 40 p. 19). Paragraph 45 of
the amended complaint states as follows:
45. Cheng’s asserted reasons for overturning the JRB panel’s decision to
grant Hatcher promotion with tenure were a pretext in an attempt to create
a defense for Defendant to Hatcher’s underlying charge of sex
discrimination.

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(Doc. 22 p. 6). Hatcher responds by arguing that the full complaint, when all allegations
are read in context, adequately states a claim for sex discrimination under Title VII of the
Civil Rights Act of 1964. The Court agrees with Hatcher.
The Seventh Circuit Court of Appeals has recently reaffirmed its prior holdings
concerning the pleading requirements concerning Title VII claims of sex discrimination.
Specifically, the Seventh Circuit stated in a July 10, 2014 decision, Carlson v. CSX Transp.,
Inc., the following:
A complaint alleging sex discrimination under Title VII “need only aver
that the employer instituted a (specified) adverse employment action
against the plaintiff on the basis of her sex.” [Tamayo v. Blagojevich, 526 F.3d
1074, 1084 (7th Cir. 2008)]; see also EEOC v. Concentra Health Services, Inc.,
496 F.3d 773, 781–82 (7th Cir. 2007) (stressing the simplicity of pleading a
Title VII discrimination claim). The plaintiff is not required to include
allegations—such as the existence of a similarly situated comparator—that
would establish a prima facie case of discrimination under the “indirect”
method of proof. Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511–12, 122 S.Ct.
992, 152 L.Ed.2d 1 (2002); see also Luevano v. Wal–Mart Stores, Inc., 722 F.3d
1014, 1028 (7th Cir. 2013) (observing that Swierkiewicz survived Twombly
and Iqbal); [Swanson v. Citibank, N.A., 614 F.3d 400, 404 (7th Cir. 2010)]
(same). While fraud claims, for example, must be pled with particularity,
see FED.R.CIV.P. 9(b), Title VII claims are not subject to a heightened
pleading standard. Swierkiewicz, 534 U.S. at 513–15. Employers are familiar
with discrimination claims and know how to investigate them, so little
information is required to put the employer on notice of these claims.
Concentra, 496 F.3d at 782.
No. 13-1944, 2014 WL 3361072 (7th Cir. July 10, 2014). With respect to Count 1, the
amended complaint adequately avers that SIU instituted a specified adverse
employment action against Hatcher on the basis of her sex. Hatcher alleges that she was
not granted tenure (and terminated as a result) because SIU had a policy within the

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Department of Political Science to only promote male tenure-track professors to tenure
status. Accordingly, SIU has adequate notice of the claim, and Count 1 shall proceed.
E. Count 2
Next, SIU argues that Count 2 (retaliation) must be dismissed because the
allegations in Count 2 consist of only three conclusory paragraphs with no allegations
containing a plausible claim for retaliation under Title VII (Doc. 40 p. 19). SIU suggests
that a statement of alleged protected activity, alleged retaliatory action, and a factual
basis for claiming that the standards of a retaliation claim under Title VII are missing
from the amended complaint (id.). Hatcher’s amended complaint alleges as follows:
49. By the conduct described above, Defendant intentionally retaliated
against Plaintiff for engaging in protected activity under Title VII of the
Civil Rights Act of 1964.
(Doc. 22 p. 7). Hatcher argues that her additional allegations that that “she engaged in a
protected activity by having a discussion with Defendant Kempf-Leonard regarding
’problems for female students in her Department who were subjected to sexual
harassment without remedy’” (Doc. 22, ¶ 58) are sufficient to state a Title VII retaliation
claim (Doc. 63 p. 2). 2 With respect to Count 2, the Court agrees with SIU.
“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.’” Carlson, 2014 WL 3361072 at *6 (quoting Luevano, 722
F.3d at 1029). “The protected activity must be specifically identified.” Id. (citing
As the Court makes clear in Part G, the Court disagrees that the exchange
between Hatcher and Kempf-Leonard was protected speech.
2

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Concentra, 496 F.3d at 781). Here, Count 2 of the amended complaint is flawed in that it
does not specifically identify the protected activity. As a result, SIU does not have fair
notice of the grounds upon which the retaliation claim (Count 2) rests.
Count 2 of the Amended Complaint (Doc. 22) is DISMISSED with prejudice.
F. Count 3
Proceeding to Count 3 (due process), Cheng advocates dismissal because Hatcher
has failed to allege a plausible claim that she had a constitutionally protected property
interest in continued employment. The Seventh Circuit has stated the following as to
constitutionally protected property interests and employment arrangements:
In order to make his due process claim, Covell must first demonstrate that
he had a constitutionally protected property interest. Rujawitz v. Martin,
561 F.3d 685, 688 (7th Cir. 2009) (citing Border v. City of Crystal Lake, 75 F.3d
270, 273 (7th Cir. 1996)); Moss v. Martin, 473 F.3d 694, 700 (7th Cir. 2007). A
person’s interest in a benefit, such as continued employment, constitutes
“property” for due process purposes only if “there are such rules or
mutually explicit understandings that support his claim of entitlement to
the benefit.” Border, 75 F.3d at 273. A protected property interest in
employment can arise from a statute, regulation, municipal ordinance, or
an express or implied contract, such as “rules or understandings that
secure certain benefits and that support claims of entitlement to those
benefits.” Border, 75 F.3d at 273 (citations omitted).
Covell v. Menkis, 595 F.3d 673, 675-76 (7th Cir. 2010).
Hatcher’s amended complaint alleges the following concerning her employment
situation with SIU:
12. Hatcher was hired in July 2006 by SIU, as a tenure track Assistant
Professor in the Department of Political Science (“Department”), in the
College of Liberal Arts (“COLA”).
13. Hatcher began her teaching assignments with Fall Semester 2006.
14. As a tenure track Assistant Professor, Hatcher began her tenure review
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process in October 2011.
15. If granted tenure, Hatcher would have been tenured beginning with
Fall Semester 2012.
16. If denied tenure, Hatcher’s final year of employment at SIU would end
in May 2013.
33. Because Hatcher was denied tenure, she was placed on a term
appointment for the 2012-2013 school year and her employment with SIU
will end in May 2013.
(Doc. 22). There are no allegations in the amended complaint that Hatcher had an
expectation of continued employment. Even if such allegations were present, Hatcher’s
expectation could not have lasted much longer than the time during which she was
considered for tenure. The employment arrangement identified in the amended
complaint clearly states that if Hatcher were to be denied tenure, her employment would
be converted to a one-year term that would end in May 2013. Thus, the entirety of
Hatcher’s employment with SIU was essentially a time-fixed, contractual position (i.e.
term) with a possibility of employment past May 2013 if her application for tenure were
granted. Accordingly, the expectation of continued employment is contingent upon a
favorable outcome of the tenure application process.
Count 3 alleges that Cheng essentially denied Hatcher a fair and unbiased tenure
application process (Doc. 22 p. 8 ¶ 54). The Seventh Circuit has held that there is no
deprivation of a constitutionally protected property interest when a contractual breach
at issue is an entitlement to some extra consideration that will result in a job offer only if
some other, highly uncertain condition is satisfied. See Yatvin v. Madison Metro. Sch. Dist.,
840 F.2d 412, 417 (7th Cir. 1988) (although a school employer breached affirmative action

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provision of employment contract with employee, employer’s failure to appoint the
employee to the position did not deprive applicant of due process property interest).
Additionally, the Seventh Circuit has repeatedly held that non-tenured faculty
members like Hatcher lack a constitutionally protected property interest that would
afford a right to due process. See Trejo v. Shoben, 319 F.3d 878, 889 (7th Cir. 2003)
(collecting cases). See also Upadhya v. Langenberg, 834 F.2d 661, 662-63 (7th Cir. 1987)
(same). The Court acknowledges that the Trejo line of precedent involved educators
within the University of Illinois system, and Hatcher has attempted to distinguish these
cases by arguing that the SIU system involves a somewhat different process. As
explained above, however, the SIU system, as alleged in the amended complaint, does
not confer a right of continued employment. In fact, the two systems actually appear to
be quite similar. See id. at 662 (describing the University of Illinois system as a five-year
process to demonstrate professional skills, ultimately leading to a decision concerning
tenure).
Trejo also explained that one of the real property interests at stake in the due
process/employment context is the employee’s right to pursue his or her chosen
occupation. See id. An “employee’s right to pursue his or her chosen occupation is
infringed only if the circumstances of the discharge, at least if they were publicly stated,
had the effect of blacklisting the employee from employment in comparable jobs.” Id.
(quoting Townsend v. Vallas, 256 F.3d 661, 670 (7th Cir. 2001) (quoting Colaizzi v. Walker,
812 F.2d 304, 307 (7th Cir. 1987)) (internal quotation marks omitted). Like Trejo, there is

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no allegation in this case that Hatcher has been effectively blacklisted from pursuing her
academic career.
Furthermore, Cheng is entitled to qualified immunity because Hatcher has not
alleged that Cheng has violated a clearly established right. “The doctrine of qualified
immunity protects government officials from liability for civil damages ‘unless a
plaintiff pleads facts showing (1) that the official violated a statutory or constitutional
right, and (2) that the right was ‘clearly established’ at the time of the challenged
conduct.’” Wood v. Moss, ---- U.S. ----, 134 S. Ct. 2056, 2066-67, 188 L. Ed. 2d 1039 (2014)
(quoting Ashcroft v. al–Kidd, 563 U.S. ––––, ––––, 131 S.Ct. 2074, 2080, 179 L.Ed.2d 1149
(2011)). There is no allegation in the amended complaint that Hatcher had a clearly
established right at the time Cheng made the final decision denying her tenure
application. When questioned on the issue at oral argument, Hatcher essentially
admitted that she could not come forward with an analogous case establishing a right to
be free from the specific conduct at issue. See Smith v. City of Chicago, 242 F.3d 737, 742
(7th Cir. 2001) (providing that qualified immunity is “dissolved” if a plaintiff points to a
clearly analogous case establishing a right to be free from the specific conduct at issue or
when the conduct is so egregious that no reasonable person could have believed that it
would not violate clearly established rights). Considering the discussion of the
well-settled Seventh Circuit precedent above, the Court does not believe Hatcher could
come forward with such a case.
Count 3 of the Amended Complaint (Doc. 22) is DISMISSED with prejudice.

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G. Count 4
Finally, Kempf-Leonard argues for dismissal of Count 4 because Hatcher has
failed to allege a plausible claim that she engaged in speech protected by the First
Amendment. For support, Kempf-Leonard relies primarily on the United States
Supreme Court’s decision in Garcetti v. Ceballos, 547 U.S. 410 (2006). In Garcetti, the
Supreme Court held that a deputy district attorney’s speech was not protected by the
First Amendment to the United States Constitution when, pursuant to his official duties
as a calendar deputy, he wrote a disposition memorandum recommending dismissal of
a pending criminal case on the basis of purported governmental misconduct. See id. at
421-22. The plaintiff later suffered adverse employment action as a result of the speech.
See id. The Supreme Court reasoned that when the plaintiff went to work and performed
the tasks he was paid to perform, he acted as a government employee, not as a citizen,
and it was essential that his public employer had the ability to exercise control over the
public employee. See id. Garcetti ultimately stands for the principle that “when public
employees make statements pursuant to their official duties, the employees are not
speaking as citizens for First Amendment purposes, and the Constitution does not
insulate their communications from employer discipline.” Id. at 421. The Seventh Circuit
has followed this principle by affirming the dismissal of First Amendment claims under
Rule 12(b)(6). See, e.g., Abcarian v. McDonald, 617 F.3d 931, 937 (7th Cir. 2010); Tamayo, 526
F.3d at 1092.
Count 4 alleges that Hatcher was subjected to an adverse employment action after

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she raised concerns with Kempf-Leonard about sexual harassment of female students
and sex harassment policies at work. In response to Kempf-Leonard’s argument,
Hatcher contends that she was speaking as a citizen. “When determining whether a
plaintiff spoke as an employee or as a citizen, we take a practical view of the facts alleged
in the complaint, looking to the employee’s level of responsibility and the context in
which the statements were made.” Abcarian, 617 F.3d at 937 (citing Tamayo, 526 F.3d at
1092).
The allegations in the amended complaint concerning the sexual harassment are
as follows:
41. In the JRB panel’s decision, reference was made to testimony by a male
colleague in Hatcher’s department that Hatcher was subjected to a hostile
work environment because she made a report of sexual harassment against
a male faculty member as she was mandated to do under SIU's sexual
harassment policy.
58. On or about November 3, [2011], Hatcher had a discussion with
Kempf-Leonard, her Dean, regarding the problems for female students in
her Department who were subjected to sexual harassment without remedy
because of problems with SIU’s current sexual harassment policy.
59. Hatcher told Kempf-Leonard that female students subjected to sexual
harassment came to her because she (Hatcher) was the senior female
faculty in the Department.
62. Because of the concerns regarding sexual harassment issues within the
Department that Hatcher raised with Kempf-Leonard, Kempf-Leonard
denied Hatcher’s application for tenure less than two (2) weeks later in a
letter dated November 16, [2011].
64. Kempf-Leonard’s action in denying tenure to Hatcher was in retaliation
for Hatcher speaking on matters of public concern in violation of her First
Amendment rights.
(Doc. 22). As a glaring starting point, paragraph 41 plainly states that Hatcher was
mandated to report sexual harassment as part of her employment with SIU. Hatcher

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argues in her response that she was mistaken in her belief that she was mandated to
report sexual harassment. But this argument actually proves Kempf-Leonard’s point that
the speech occurred within the context of Hatcher’s employment. At the time the
statements were made, Hatcher believed she was speaking as an employee, not a citizen.
Further, the allegations state that the female students came to Hatcher because she was
“the senior female faculty in the Department”(id. ¶ 59), and the reason that Hatcher
raised the concerns was to address “problems with SIU’s current sexual harassment
policy” (id. ¶ 58). Thus, considering Hatcher’s level of responsibility and the context in
which the statements were made, it is apparent that Hatcher was speaking as a public
employee rather than a citizen.
Similar to Count 3, the Court also concludes that Kempf-Leonard is entitled to
qualified immunity because Hatcher has not alleged that Cheng violated a clearly
established right and has not come forward with a clearly analogous case establishing a
right to be free from the specific conduct at issue.
Count 4 of the Amended Complaint (Doc. 22) is DISMISSED with prejudice.
H. Conclusion
For the forgoing reasons, the Motion to Dismiss for Failure to State a Claim (Doc.
39) is GRANTED in part and DENIED in part. Counts 2, 3, and 4 of the Amended
Complaint (Doc. 22) are DISMISSED with prejudice.
The Clerk is DIRECTED to terminate Rita Cheng and Dr. Kimberly
Kempf-Leonard as Defendants and to enter judgment accordingly at the conclusion of

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this case.
This case shall proceed on Count 1 against Defendant Board of Trustees of
Southern Illinois University. The dispositive motions deadline in this case is RESET to
September 9, 2014.
IT IS SO ORDERED.
DATED: August 7, 2014
s/ Nancy J. Rosenstengel
NANCY J. ROSENSTENGEL
United States District Judge

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